Practical Legal Notes - January 2024

1. New developments in mortgage matters in RDL 8/2023.

The Royal Decree 8/2023 brings as the most relevant novelties regarding the protection of mortgage debtors, the following:

• The total or partial early repayment commissions for variable interest mortgage loans are eliminated during 2024.
• Commissions for the modification of conditions to change from a variable to a fixed rate are also eliminated. Nor may this fee be charged when the modification consists of changing from a variable rate to a mixed rate, provided that the fixed period is at least 3 years. 
• No commissions may be charged for changing the entity when the variable rate is replaced by a fixed rate or by a mixed rate with the aforementioned requirements.

2. CV + PH of "habitual residence" in Catalonia by one of the spouses. The consent of the other spouse is required, as the theory of complex legal business does not apply in Catalonia.

Attached (HERE) Resolution JUS/4208/2023 of the Direcció General de Dret, Entitats Jurídiques i Mediació, of December 12 (DOGC 20/12/2023), in which the DG, for doctrinal purposes, resolves a case where a married person (of Catalan civil status), alone carries out the classic CV + PH of a property to be used as "habitual residence", formalizing the 2 deeds, that is, without the consent of the other spouse.

The DG, aligning itself with the Registrar, considers that in Catalonia the theory of the complex legal business is not applicable, based on articles 569-31 and 231-9.2 CCCat, so that the purchase of the family home and the constitution of a mortgage on this home immediately afterwards (to guarantee the loan that makes the acquisition possible), are two independent legal businesses, so that they must meet the respective legal requirements, that is, in the case of the PH, the consent of the cohabiting spouse of the mortgagor.

3. Modification of the code of good banking practices in mortgage novations.

Attached (HERE) Resolution of December 27, 2023, of the Secretary of State for Economy, which modifies the Code of Good Banking Practices, for debtors with difficulties, broadening the spectrum of potential beneficiaries of these measures in the case of mortgage novations. Specifically, fundamentally:

• The income limit of the family unit to be eligible for the Code is increased to 4.5 times the annual IPREM ( in specific cases it can reach 5.5 times).
• It is possible to request measures to extend the term up to 7 years and to fix the installment for 12 months, independently or jointly.

4. Dissolution and liquidation of SL. In any case, it is necessary to identify the partners and their share of the capital stock.

Attached (HERE) DGSJFP Resolution of September 26, 2023 (BOE of November 1, 2023), in which the DG, aligning itself with the Mercantile Registrar, determines that in the dissolution and liquidation of an SL, even if the share capital to be distributed is 0, it is necessary to identify the partners and their share of participation.

5. Registration of declaration of "old" new construction. If this route is chosen, it must be proven that the time required by law has elapsed.

Attached (HERE) Resolution DGSJFP of November 29, 2023 (BOE of December 28, 2023), in which the DG resolves a case of a declaration of "old" new work, where a cadastral certification is provided that proves that the work is from 2015 (so that the 10 years required by the regional regulations to be able to avail of this route have not elapsed), together with a document issued by the Town Hall of the town where the property is located, stating that the conditions established in the license have been fulfilled and that there is no objection to the granting of the first occupancy license.

The DG, aligning itself with the Registrar, determines that if one intends to register a declaration of new construction, one must choose either the"ordinary" route of declaration of completed new construction (more demanding at the documentary level, since a municipal license, insurance, descriptive certification by a competent technician, etc., will be required) or the route of the declaration of new construction "by age", so that, if one chooses the latter, it is necessary to prove that the time required by law has elapsed for this purpose, regardless of the time required by the law.) or the route of the declaration of new construction "by seniority", so that, if the latter is chosen, it is necessary to prove that the time required by law has elapsed, regardless of whether a document is provided that would correspond in the case of having opted for the declaration of new construction of the "ordinary route".

6. Modification of horizontal property and real right of mortgage. Summary of when the consent of the mortgagee is required.

Attached (HERE) Resolution DGSJFP of November 29, 2023 (BOE of December 28, 2023), in which the DG resolves a case of a deed of modification of horizontal property, with new configuration of independent elements (of which several mortgaged properties were part). The Registrar denies the registration due to the lack of consent of the mortgagee.

In this case, the DG, with an interesting Resolution, makes a very didactic summary on the registration of acts that may alter the objective element of the mortgage guarantee and in which cases the intervention of the mortgagee is, or is not, necessary.

Finally, in the specific case, it determines that such consent is not necessary, since there is a correspondence between the original properties and those resulting from the reorganization of the horizontal property.

7. Links of interest on the intranet of the notary association of Catalonia

Attached (HERE) informative note from the Notarial Association of Catalonia, where links of interest for the day-to-day preparation of certain real estate transactions are recalled. Specifically:

• Energy efficiency certificates: Search engine to locate the technical information of the different energy efficiency certificates of buildings or dwellings included in the official registry of the Generalitat de Catalunya.
• V.P.O.: Consultation of the maximum sale and rental prices of subsidized housing.
• Registry of urban planning of Catalonia: Consultation tool for current urban planning, urban planning agreements and consolidated urban plots.

8. Notaries and data protection, big data and artificial intelligence.

The following are the main conclusions of a recent WebiNots, organized by the Notarial Association of Catalonia, with a lawyer specialized in data protection:

• Take extreme care with all the documentation and information we manage. Only allow access to it to authorized parties.
• Be very careful with the Emails that we send to our clients. In principle, they only give us their email address for purposes related to their writing, so you cannot send them anything else that has a commercial purpose.
• WhatsApp communications with clients: Never send drafts of deeds, transaction documentation or confidential customer information (WhatsApp uses Big Data tools to extract data from everything that circulates through its App).
• Artificial Intelligence (AI, type Chat GPT): If information is sought in it (models of deeds, contracts, legal information, etc.), employees should not, under any circumstances, provide specific customer data (company names, transaction figures, etc.), as the AI stores them and may eventually use them in the future to provide answers to other people using the AI.

9. Motor vehicles and death of the owner. Formalities to be taken into account

Attached (HERE) Instruction of the DGT on the procedures to be carried out when the owner of a motor vehicle dies. Specifically, it details that the heirs, within a maximum period of 90 days, can choose between two options:

• Or identify a provisional custodian, who will be the owner of the vehicle and responsible for everything related to it. A specific procedure must be carried out to communicate this custody within 90 days of the death. It is provisional and the vehicle cannot be sold. It can only be transferred to the custodian himself or an heir.
• Or make the definitive transfer to one of the heirs, for which, once the vehicle is awarded to one of the heirs, he/she will have 90 days to make the definitive transfer to his/her name. Said holder becomes the owner, with all rights and obligations.

10. New developments in the incorporation of emerging companies

Brief review of Law 28/2022, on the promotion of the start-up ecosystem (HERE), which promotes the creation of start-ups in Spain by establishing tax incentives and simplifying the procedures for their incorporation:

• A reduced corporate income tax rate of 15% is provided for.
• In order to attract foreign investment, the foreign investor is only required to have a Spanish NIF, but not a NIE.
• The deadline for the registration of its incorporation is 5 working days and if standard bylaws are used, six hours.
• Notary fees in the case of incorporation via CIRCE, with standard bylaws and with capital of less than €3,100, will be €60.
• The concept of an emerging company is included in articles 3 and 4 of the aforementioned law.

11. Liquidation of a partnership with a partner under representative conservatorship. Judicial approval is required.

Attached (HERE) DGSJFP Resolution of December 14, 2023 (BOE of January 18, 2024), in which the DG considers that the partition of the inheritance and the liquidation of a capital company with awarding of assets to the partners are comparable. On the basis of this comparison, the DG decides that judicial approval of the liquidation of the company is necessary if the liquidation involves persons subject to representative guardianship (what used to be called guardianship of the incapacitated).

12. Electronic matrix and taxation

Attached (HERE) Resolution of the General Directorate of Taxes, in which, in response to a series of questions on the electronic protocol, the following is determined:

• Notarial deeds, minutes and testimonies, whether they are issued on paper or electronically, are subject to the so-called fixed fee of the modality of documented legal acts, notarial documents.
• The current wording of the Law regulating ITP and AJD only allows the collection of the fixed amount of the AJD on stamped paper, so we will have to wait for a reform of this law to enable a system of payment of the tax.
• Regarding the notarial invoicing, nowadays, we personally do not see legal coverage to be able to charge the electronic protocol folios. Therefore, we will continue charging only for the proceedings corresponding to the electronic protocol as we have been doing so far.
• This issue is being closely monitored and, should there be any new developments in this regard that affect the way public instruments are invoiced, these will be immediately communicated to all staff.