Practical Legal Notes - April 2024

1.- The disinheritance in a will of an heir under 14 years of age is only valid if it is so recognized by a court decision.

Attached (HERE) Resolution DGSJFP of January 15, 2024 (BOE of February 23, 2024), in which the DG resolves a case in which a person, in will, institutes heirs to two of his children and, likewise, disinherits a third son and also the descendants of this disinherited son (ie, her grandchildren, two minors aged 13 and 8 years), leaving on record in the will their contempt for her person and their lack of interest in maintaining the relationship between the grandmother and the grandchildren.

The Registrar denied the registration on the grounds that, since two of the beneficiaries of the will of the deceased were minors at the time of the granting of the will, their intervention in the partition of the inheritance could not be disregarded, since the minors lacked the aptitude to be legally imputable for the conduct that constitutes the legal cause of disinheritance.

The DG, aligning itself with the Registrar, resolves that, for minors under 14 years of age, their inimputability must be assumed in the absence of the corresponding judicial pronouncement on the conditions of maturity of the minor that make him/her suitable to be the passive subject of the disinheritance, so that, unless there is a judicial sentence that validates the disinheritance, this cannot be considered effective in the patrimonial and registry level.

2.- Sale of property belonging to an incapacitated person. If there is a judicial resolution that authorizes the sale and it is incorporated to the deed, it is sufficient

Attached (HERE) Resolution DGSJFP of February 15, 2024 (BOE of March 14, 2024), in which the DG resolves a case in which a person, incapacitated, sells some properties, being represented in this act by his guardian, not stating in the deed neither the fact of having sent to the Civil Registry the corresponding judicial resolutions regarding the appointment of guardian nor the acceptance of the position.

The Land Registrar denies the registration for this reason, and the DG, upon the appeal of the Notary, aligning itself with the latter, determines that, in this specific case, this defect must lapse, since in the deed of sale a judicial order expressly authorizing this sale is provided and incorporated, so that, as the act of prior control by the judicial authority is included in the qualified deed through a resolution whose content leaves no room for doubt and has fulfilled the function of control of certain powers which, as legal representative, are the responsibility of the guardian, it must be concluded that the registrar has all the necessary elements to qualify the judicial authorization that constitutes sufficient proof of the support measure and on the referred charge and gives support to the dispositive act carried out by the guardian on behalf of her represented party.

Liquidation and extinction of SL with assets and debts not yet due. It is necessary to deposit the money to face these non-callable liabilities in a credit institution.

Attached (HERE) DGSJFP Resolution of March 21, 2024 (BOE of April 16, 2024), in which the DG resolves a case in which an SL agrees its liquidation and extinction, with the particularity that it has assets (28,419.60 euros), as well as a liability not due (the Corporate Tax of 2023 that still could not be paid due to a question of dates). The company adopts the agreement, making a provision for the payment of this Corporate Tax, allocating the rest of the assets to the corresponding partners.

The Mercantile Registrar denies the registration stating that, in these cases, since there is a liability not yet due and an asset with which to meet it, it must proceed, in accordance with the provisions of Article 391.1 of the Capital Companies Act and 247.2.3.ª of the Mercantile Registry Regulations, i.e., to deposit the corresponding amount in a credit institution to meet said payment as soon as the regulatory period for such payment is opened.

After the corresponding appeal was filed by the Notary Public authorizing the deed, the DG finally agreed with the Registrar, ruling that, in a situation such as the one arising from the case (sufficient assets and debt not due on the balance sheet), the legal provision is that the assets be distributed as approved by the shareholders (Article 390 of the Capital Companies Act), without prejudice to the non-callable liabilities being duly consigned to a credit institution so that, when the time comes, they can be paid (Articles 391.1 and 395.1.b).1 and 395.1.b) of the same law).

Pension plans do not form part of the inheritance, so that upon the death of the holder, the vested rights correspond to the person designated by the participant or, failing that, to the person determined by the plan's regulations.

As a result of a recent consultation made by a client, on this issue (pension plans and their relationship with the estate), the doctrine of the SC on the matter, set forth in its STS 274/2021, of May 10, is recalled, in which it is established that "as far as the issue raised in this appeal is concerned, we must start from the fact that the legislator has left out of the scope of inheritance the benefits that the beneficiaries are entitled to receive in the event of the death of the members of a pension plan or the participants of pension plans, we must start from the fact that the legislator has left the benefits that beneficiaries are entitled to receive in the event of the death of the members of a pension plan or of the participants in pension plans outside the scope of hereditary succession. The right to the corresponding benefits generated in each plan in favor of the members or participants is not acquired by inheritance; therefore, even in cases where the beneficiary and the heir are the same person, the right to the benefit is subject to its own rules and not to the legal regime of inheritance. As is similarly established for life insurance in art. 88 of Law 5/1980, of October 8, 1980, on insurance contracts, and saving the differences between the two figures, the benefit must be delivered to the beneficiary in fulfillment of the contract even against the claims of the legitimate heirs and creditors of the policyholder".

5.- Termination of administrator and notification abroad

Attached (HERE) DGSJFP Resolution of March 19, 2024 (BOE of April 11, 2024), in which the DG resolves a case in which it is agreed the dismissal of a sole administrator of a SL, which has its domicile abroad.

The DG determines that, in these cases, the route of Article 202 of the NR is not the only one, so that if the cédula is sent by registered mail with acknowledgement of receipt and delivery cannot be made, alternatively, for such notification, one can also resort to the route of Regulation (EU) 2020/1784, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (or, where appropriate, to the Hague Convention of 15 November 1965), where it is determined that the notarial notification must be served through the transmitting body designated by the Kingdom of Spain, that is to say, through the lawyer of the Administration of Justice corresponding to the court of the domicile of the authorizing notary (in these cases, the client must therefore go to the Court of the place where the notarial office where the deed has been signed is located and request the lawyer of the Administration of Justice of said Court to forward the document to the addressee, through the procedure established in said European regulations).

6.- Expansion of corporate purpose and right of separation of partners

Attached (HERE) DGSJFP Resolution of March 11, 2024 (BOE of April 11, 2024), in which the DG resolves a case in which a company submits for registration a deed of extension of corporate purpose and modification of bylaws, agreed by its General Meeting, in which said SL, originally dedicated to the general cleaning of buildings and their maintenance, now extends its purpose to disinfection, rat extermination and disinsectation services, as well as to the transport of goods by road and transport agency.

The Mercantile Registrar refuses the registration (and the DG confirms it), ruling that the addition of an activity to the corporate purpose is a substantial modification of the corporate purpose which gives rise to the right of separation of the partners who have not voted in favor of this change of corporate purpose.

Therefore, in these cases, the deed of amendment of the corporate purpose that is signed must include the publication or declaration that the agreement has been communicated to those shareholders who have not voted in favor (article 348 LSC), and the declaration of the administrators that no shareholder has exercised the right of separation within the established period or that the company, after authorization of the general meeting, has acquired the shares of the separated shareholders (articles 346 and following LSC).

7.- Sale of property by proxy of a company. It is required to outline adequately all the circumstances of the proxy.

Attached (HERE) DGSJFP Resolution of March 26, 2024 (BOE of April 17, 2024), in which the DG resolves a case in which a company, represented by an attorney-in-fact, sells a property. The authorizing Notary Public, when reviewing said power of attorney, does not specify whether it is general or special, whether it is registered or not, nor the person who grants said power of attorney on behalf of the company in favor of the attorney-in-fact.

The Land Registrar refused the registration, alleging that the representation of the attorney-in-fact is not adequately described, being this criterion confirmed by the DG, since the notary authorizing the qualified deed merely states that the intervening party in representation of the registered company acts by virtue of a power of attorney granted by means of a deed of his protocol, but omitting any reference to the special nature or not of the same, to the person granting the power of attorney and to the representative title linking the latter with the company, thus lacking the necessary circumstances for the registrar to be able to check that the authorized title allows her to corroborate that the notary has exercised his function of assessing the existence and validity of the power of attorney and the sufficiency of the powers it confers in a complete and rigorous manner.

8.- Content and form of the notice of the general meeting. Aspects to be taken into account

Attached (HERE) Resolution DGSJFP of March 22, 2024 (BOE of April 16, 2024), in which the DG resolves a case where the Registrar refuses the registration of a deed of elevation to public of corporate resolutions (dissolution and extinction of the company and appointment of liquidator), considering that the notice of meeting was not well done because it was not sent by the administrator (but through a third party, that is, the postal service of the "Colegio de Abogados de Palma") and, also, because in its content, the agenda simply included the dissolution of the company for legal reasons (without specifying it concretely).

In this case, the DG resolves to revoke these defects, determining that if the notice of meeting comes from the administrator and is signed by him, even if it is sent by a third party, it is valid and, likewise, that the agenda on dissolution for legal cause is valid without the need to express the specific cause of the dissolution.

9.- Sale of real estate by a bankrupt entity. A final court decision authorizing the sale is required.

Attached (HERE) DGSJFP Resolution of March 19, 2024 (BOE of April 11, 2024), in which the DG resolves a case where a deed of sale is presented for registration, in which the selling company is in insolvency proceedings, in the liquidation phase, and the sale is carried out in accordance with the liquidation plan approved by a court order which is not final.

The Registrar refuses the registration for this reason (lack of finality of the order) and the DG confirms it, thus determining that for the sale of a property of a bankrupt entity in liquidation, the order approving the liquidation plan must be provided, stating its finality.

Remuneration of the director of a company. The remuneration system must be set forth in the bylaws.

Attached (HERE) DGSJFP Resolution of December 4, 2023 (BOE of December 27, 2023), in which the DG resolves a case in which it determines that, in relation to the remuneration system for the position of director of a company, the bylaws must determine the specific form in which such remuneration will be paid (i.e., it is not admissible to describe several alternative systems and leave the specific choice to the discretion of the general meeting).

In any case, not to be confused with the competence of the Meeting to approve the maximum amount of the annual remuneration of all the directors, since here what is indicated is that the Bylaws must establish the specific form in which the directors are remunerated (for example, a fixed allowance or a share in profits), without it being admissible to describe several alternative systems and leave it to the general meeting to choose among them which one it chooses in the specific case.

11.- Sale of real estate with registered right of use in favor of children under 16 years of age. Judicial authorization is required

Attached (HERE) Resolution DGSJFP of March 11, 2024 (BOE of April 11, 2024), in which the DG resolves a case where the sale of a property belonging in joint ownership to two ex-spouses is formalized, and in which there is a right of use in favor of the children, fixed in the judicial sentence of divorce.

In these cases, the GD determines that, if the children are under 16 years of age, judicial authorization will be required for the sale, while, if the children are over 16 years of age, their consent in a public deed will suffice.

12.- Communications with the Property Registries: Important news!

On May 9, the part of the law 11/2023 that regulates communications between notaries and registries will come into force. This fact is requiring modifications to the SIGNO applications and communication systems, on which the technicians of both corporations have been working for weeks. As regards the forwarding of copies of deeds to the registries, the changes visible to the notary's offices will be minimal, affecting only some new data established in the resolution of the DGSJFP of July 20, 2023, despite the significant progress in security that the new system will bring. As for the obtaining of registry information through the continued simple notes, and given that the law prohibits the use of the telefax, a repository system will be used, which notaries will be able to consult as many times as necessary, at no additional cost to that of the note itself.

In any case, I would like to remind that the resolution of the DGSJFP of July 7, 2023 establishes that May 9 and 10 will be non-business days for document filing purposes. Therefore, notaries will receive the proof of entry of the document in the registry immediately, but the filing entry will not reach us until the following working day. In the first few weeks it may happen that, due to technological integration issues, some registries do not request all the data that must accompany the document presented. This will not affect the validity of the filing, which will be made with the minimum data submitted.

In the next few days, Ancert will send the corresponding manuals to your notary's office and an online training session will be held, of which you will be promptly informed.

13.- Right of first refusal in real estate transactions of large holders in Catalonia.

Attached (HERE) the Catalan Decree Law 6/2024, of April 24, on urgent housing measures, which recognizes a right of first refusal in favor of the Generalitat in the transfer of any housing located in an area declared to be a tight residential market owned by a large holder legal entity that is registered in the registry of large holders of housing. This right of first refusal affects the first and subsequent transfers of the dwellings.

As of today, this Register of large holders does not yet exist (as stated in the note of the Notarial Association of Catalonia, which is attached HERE), so that, when it comes into operation (of which due notice will be given), this limitation must be taken into account when formalizing this type of real estate sale and purchase transactions.