Practical Legal Notes - February 2024

1.- WebiNots successions. Interesting issues to take into account on a daily basis.

The following are two interesting issues, analyzed in the last WebiNots of the Association of Notaries of Catalonia, in matters of inheritance:

WILL AND NOTARIAL CAPACITY TRIAL:

Two rulings of the Supreme Court of Justice are analyzed where the validity of two wills granted by elderly people (over 80 years old) is questioned.Extreme caution with wills of elderly people (over 80 years old), which, taking into account the population pyramid, will be more and more common. At the slightest doubt about the testator's capacity, there are several options to reinforce the judgment of capacity:

• Prior record of evidence that the person is of sound mind (medical report).
• Make a recording of the person with an interview and deposit it in a previous record.
• Extreme cases: require the presence of 2 physicians.

DONATIONS AND IMPUTATION TO THE ESTATE:

In accordance with the Civil Code of Catalonia (art. 451-8 CCCat), "donations between living persons granted by the deceased with an express agreement of imputation or made in payment or on account of the legitimate are imputable to the legitimate. The imputable nature of the donation must be expressly stated at the time it is granted and cannot be imposed subsequently by acts between living persons or by cause of death.

It is important to remember this to the clients when the donation is formalized, because it can only be done at that moment, not a posteriori!(as it happens in the case analyzed in the seminar, where after the donation, the relationship between father and son deteriorates, and the father (donor), in will, indicates that this past donation is imputable to the legitimate, but this is no longer possible, and this is what the TSJ declares in the sentence of the specific case).

2.- Significant developments in foreign investments

Attached (HERE)Informative Circular 1/2024, of the General Council of Notaries, on Foreign Investments. It details the novelties introduced by Order HFP/115/2023, of February 9, which determines the countries and territories, as well as the detrimental tax regimes, which are considered as non-cooperative jurisdictions (HERE), which came into force on February 1, 2024.

This order (which implements Royal Decree 571/2023, referred to in a previous Newsletter) sets out the forms for the processing and declaration of foreign investments in Spain and Spanish investments abroad. As a reminder, it should be pointed out that said regulation establishes, depending on the case, a declaration or authorization regime (in the case of the declaration, its absence does not affect the validity of the operation, while, in the case of authorization, its absence does affect its validity). In the attached Circular, the specific cases in which the declaration or authorization is required are detailed.

Procedure to take into account in operations where prior declaration is required:

1. The foreign investor who is going to formalize the transaction before a notary must, prior to the signing, complete, under his sole responsibility, the corresponding declaration in AFORIX(see attached HERE manual with a summary of the procedure to be carried out by the non-resident holder).
2. If the grantor has filled in the corresponding form and provides the Notary's office, at the time of signing, the corresponding electronic files, the Notary's office must check that the essential data of the electronic file delivered coincide with those of the deed or policy to be signed (HERE a manual with the procedure to be followed at the Notary's Office is attached). Once this verification has been carried out, the form must be printed and incorporated into the deed, so that, once the deed has been signed, the Notary must send the information provided, through the notary's electronic office, to the General Council of Notaries, who in turn will send it to the Investment Registry.
3. If the grantor does not deliver the file at the moment of signature, the Notary will leave record of it in the deed, with the opportune warnings. If the file is provided later, the Notary will record it by means of diligence, proceeding to carry out the same steps described above.
4. Also attached are models of external investment clauses to be included in the deeds, as the case may be (HERE).

Procedure to take into account in operations where express authorization is required:

In the attached circular the operations subject to this express authorization are detailed(for example, investments of residents in non-EU countries that imply a 10% or more of a Spanish company, if the object of the investment is, among others, critical infrastructures, critical technologies, energy supplies, sectors of access to sensitive information, or means of communication) In these cases, the Notary is obliged to inform the applicants of the need to obtain this express authorization, denying the authorization of the public document until the same is not obtained.

3.- In Catalan inheritance agreements, provisions may be made in favor of third parties not directly involved in the agreement.

Attached (HERE) Resolution JUS/47/2024 of the Direcció General de Dret, Entitats Jurídiques i Mediació, of January 3 (DOGC 19/01/2024), in which the DG resolves an appeal filed against the refusal of a Registrar to register a succession agreement formalized by a mother (who has 4 children) and three of her children, in which dispositions are made in favor of the grantors, but also in favor of a third party who does not participate directly in the agreement (that fourth child).

The DG, aligning itself with the appellant, revokes the qualification note, stating that, in accordance with the second paragraph of art. 431-1 of the CCCat, the Catalan succession agreements admit dispositions between the grantors and, also, in favor of third parties who do not participate directly in their granting.

4.- Purchase option and prohibition of commissory agreement. It is not possible to formalize a purchase option on a property in guarantee of previous debts between the parties.

Attached (HERE) Resolution DGSJFP of January 9, 2024 (BOE of February 21, 2024), in which the DG resolves a case in which the Land Registry refuses the registration of a right of purchase option on a property, as it incurs in the prohibition of the commissory agreement (as there are previous financial relations between grantor and optionor, that is, previous debts, which are embodied in a protocol prior to the purchase option).

The DG, aligning itself with the Registrar, considers that, in effect, it is not possible to use the purchase option business for a purpose that is foreign to it, that is, to operate as a guarantee, so that it is not admissible that, under the appearance of a purchase option contract, a seizure is hidden that allows the option holder (creditor of a debt), to become owner of the property offered as guarantee (to settle that debt), and all this, without the requirements and precautions proper to the procedural execution.

5.- New construction and power of segregation of portions of a property for parking and storage rooms by the developer. Interpretation of statutory clause

Attached (HERE) DGSJFP Resolution of December 19, 2023 (BOE of February 16, 2024), in which the DG resolves a case in which the developer of a new building formalizes in a deed a segregation of an undivided participation that belongs to him, in a semi-basement floor premises intended for garage / storage rooms, to create three independent registry properties, that is, two parking spaces and a storage room, in order to proceed with its sale to final buyers.

The Registrar refuses the registration because, in view of the clause in the bylaws of the horizontal division that empowers the developer to carry out such segregations, it is noted that the same clause establishes that such power may only be used "before proceeding with the sale of the aforementioned storage rooms", considering the Registrar that since the developer has already started to sell other storage rooms, this clause cannot be applied, so that the consent of all the registered owners of the remaining undivided shares already sold is necessary.

The DG, aligning itself with the Notary, revokes the qualification note, considering that, in this case, it is necessary to interpret the statutory clause in a "logical, finalist and contextual" way, that is, allowing such modifications, even if the sale of other storage rooms has already started, as long as such subsequent modifications only affect undivided participations belonging to the developer company.

6.- Acquisition of real estate by a person married in community of property with privative character (common law). Forms of instrumenting it and accrediting it

Attached (HERE) Resolution DGSJFP of January 15, 2024 (BOE of February 22, 2024), in which the DG, resolves a case related to a purchase of a property, with privative character, of a married person in regime of community property of common law.

Interesting Resolution to remember the ways in which this acquisition can be produced with privative character, that is to say:

• Undoubtedly justifying the privative nature of the property (by means of public documentary evidence).
• Confession of privativity of the other spouse (which subjects the acquisition to the special regime of art. 1324 Cc and 95.4 of the Mortgage Regulation).
• Celebration between the spouses of a legal business of attribution of privative character (where the onerous or gratuitous cause of such business is clearly expressed).

7.- List of legal aid support entities. Information of interest for people who may need it

Attached (HERE), a list of entities and institutions that can provide assistance to people who require it for the exercise of their legal capacity under equal conditions (elderly people with cognitive impairment, disabled people, etc.), provided by the General Directorate of Personal Autonomy and Disability of the Generalitat de Catalunya to the Notarial Association of Catalonia. To take it into account if we attend any client who requires this kind of assistance or may need it in the future.