Practical Legal Notes - March 2024
It is possible to cancel the entries in the Mercantile Register of a company even if there are debts, provided that it is stated in the deed of liquidation of the company and in the liquidators' certificate that there are no assets to satisfy creditors.
Attached (HERE) Resolution DGSJFP of February 5, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which a company, by means of the corresponding resolution of the General Meeting, agrees the dissolution and extinction of the same, and in the corresponding deed the Mercantile Registry is requested to cancel the company's registry entries. In said deed it is stated that the company has no assets whatsoever and that, likewise, it only has one creditor (the AEAT), whose credit cannot be satisfied due to the absence of active mass.
The Registrar refuses the registration alleging that, in accordance with art. 395 LSC, the deed of extinction of the company must contain the declaration of the liquidators that the creditors have been paid or that their credits have been consigned.
The liquidator of the SL filed an appeal against this classification, and the DG, aligning itself with the latter, considers that, in effect, when there are no assets to liquidate, even if there are creditors, in the strictly registry sphere there is no rule that makes the cancellation of the registry entries of a capital company that lacks corporate assets subject to the prior declaration of insolvency. Therefore, even if there are creditors, since there is nothing to pay them, the request for cancellation of the registry entries must be admitted, even if the company has not previously declared bankruptcy.
2.- It is mandatory to include the foreigner's identification number in any document with tax implications, even in an inheritance waiver, since it determines who will be the recipients of the assets of the estate in the inheritance partition.
Attached (HERE) Resolution DGSJFP of February 6, 2024 (BOE of March 8, 2024), in which the DG resolves that in the renunciations of inheritance where foreigners intervene, it is also necessary to state the Foreigner Identification Number of the renouncing party, since it is an act with tax transcendence, for which, it is required by law (arts. 254.2 LH, 23 LN and 156.5 RN).
3.- Novation of a mortgage loan on the family's habitual residence. The consent of the other spouse is not necessary when neither the capital is increased nor the mortgage liability is increased.
Attached (HERE) DGSJFP Resolution of January 30, 2024 (BOE of March 8, 2024), in which the DG resolves that if a mortgage novation that encumbers the habitual residence of the family is formalized by one of the spouses, the consent of the other spouse is not necessary, if in said novation the capital is not increased nor the mortgage liability of the encumbered property is increased.
In order for an ob rem connection to be effective against third parties, it must be expressly stated in the title deed and in the registration entry in the land registry or as a result of a legal provision, but such connection may never be tacitly interpreted.
Attached (HERE) Resolution DGSJFP of January 29, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which the sale of an undivided partition of 1/49 of a registered property consisting of commercial premises, which gave the right to exclusive use and enjoyment of a parking space, is formalized by means of a deed of sale. In the Registry and in the simple informative note it was registered that "the mentioned parking spaces will be considered as an accessory element for the service of the house and consequently they are expressly obliged not to transfer the acquired parking space but jointly with the house corresponding to each one of them". The Registrar denied the registration, considering that only the parking space can be sold together with the dw elling in question.
The DG, aligning itself with the Notary, revokes the qualification note and allows the sale, arguing that in this case we are dealing with a merely obligatory agreement, and not an ob rem linkage, since this requires that it be duly formalized and expressly recorded as such.
Purchase and sale of real estate with the buyer represented by an English power of attorney. the original power of attorney is sufficient
Attached (HERE) DGSJFP Resolution of February 21, 2024 (BOE of March 19, 2024), in which the DG resolves that in the case of UK powers of attorney, by its very nature, the judgment of sufficiency of the Notary is properly made when the original document signed by the principal is exhibited before him/her, and not in the form of an authentic copy.
6.- Mortgage loan to a commercial company with a guarantor, a natural person who is the administrator of said company. LCI consumer or not?
Attached (HERE) DGSJFP Resolution of February 5, 2024 (BOE of March 8, 2024), in which the DG resolves a case in which a mortgage loan is formalized in favor of a company, with a natural person who is also a director of the company as guarantor.
The DG resolves that when the individual guarantor of a business loan is a director of the company, attorney-in-fact, or partner, that individual has a functional link with the company that excludes him from having the status of consumer and, therefore, determines the non-application of the precautionary measures of the LCI.
7.- Mortgage novation. it is necessary in any case to express the applicable spread for the calculation of the financial loss.
Attached (HERE) DGSJFP Resolution of February 29, 2024 (BOE of March 20, 2024), in which the DG resolves that, in order to be able to calculate the financial loss, it is necessary to express the differential applicable to the same, as this must be stated in the registration so that its quantification, if applicable, can be carried out correctly.
8.- Bankrupt company in liquidation phase. it is not possible to register the appointment of a sole administrator.
Attached (HERE) DGSJFP Resolution of February 19, 2024 (BOE of March 19, 2024), in which the DG resolves that, in the case of a company in insolvency proceedings and already in the liquidation phase, it is not possible to appoint and register a new administrator, since the company liquidation operations are the competence of the company's liquidators and cannot be carried out by the company administrators who, as a consequence of the state of dissolution, are de jure terminated.
