Practical Legal Notes - December 2024
1.- Notarial deeds in digital documents
Attached (HERE) link to an interesting practical training session given by the Notary of Madrid Mr. Fernando Gomá, regarding notarial acts related to the digital world (WhatsApp acts, web pages, content in social networks, deposit of digital documents, etc.).
Practical session, in video format, very interesting, with notes to take into account when formalizing this kind of documents, where we can even find models of public document to use in these cases.
2.- It is possible to incorporate an S.L. with a single shareholding of 1 euro.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 29, 2024 (BOE of November 22, 2024), in which the General Directorate resolves a case related to a deed of incorporation of an SL with a single shareholding of one euro of nominal value.
The Registrar refuses the registration, considering that the fact that the SL constituted has only one participation contravenes the principles of the SL and its normal development (considering that the LSC presumes a broader division of the capital stock).
After the corresponding appeal was filed, the DG aligned itself with the appellant Notary, revoking the qualification note, considering that, under the protection of the autonomy of the will of the founding partner, the incorporation of this SL of a single share with a nominal value of 1 euro is admissible, since there is no provision that prohibits it.
3.- Instruction for the verification of real estate values for the year 2025 in Catalonia.
Attached (HERE) the Instruction for the verification of real estate values in the tax on capital transfers and documented legal acts and in the tax on inheritance and donations, which must be applied to the taxable events of the year 2025.
It is reminded that in transfers of real estate that have not been assigned a reference value or this cannot be certified by the General Directorate of Cadastre, the taxable base and, therefore, the value that must be included in the self-assessment, without prejudice to administrative verification, will be the greater of the following: the value declared by the interested parties, the price or agreed consideration or the market value.
In these transfers, the Administration has the power to verify that the value of the assets and rights declared in the self-assessment is not lower than the market value, for which purpose, the values stated in said Instruction will be taken as a reference.
4.- The Supreme Court establishes that 'mobile-homes' require an urban planning license because they are similar to a prefabricated house and not to a trailer.
Attached (HERE) press summary of the STS 1917/2024, of December 5, in which the Chamber III of our High Court resolves that the 'mobile-home' require an urban planning license because they can be assimilated to a prefabricated house and not to a trailer.
Thus, for the Supreme Court, it is the urban planning regulations applicable in each case that legitimize the installation of mobile homes on a plot of land, as this is justified by an overriding reason of general interest such as the protection of the environment and the urban environment.
5.- Be careful with administrative or criminal prohibitions of disposition, since they prevent the registration of the purchase and sale of a property, even if it is a previous one.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 9, 2024 (BOE of November 15, 2024), in which the General Directorate resolves a case related to a deed of sale of a property on which there is a prohibition of disposition that appears in a preventive annotation ordered by the Public Treasury, which is practiced after the deed of sale has been granted.
Specifically, it is a deed of sale granted on December 21, 2023, which was presented at the Registry on May 8, 2024. However, prior to this date, on April 12, 2024, a preventive annotation of prohibition of disposition ordered by the Treasury was made on the property subject to sale.
The DG, resolving the appeal filed, reiterates its doctrine denying the possibility of registering the sale, understanding that the preferential effectiveness of transfers prior to the prohibitions to dispose is not applicable in criminal or administrative proceedings, where the public order component of the precautionary measures adopted must prevail.
6.- Early cancellation of mortgage loans. Values to take into account to know whether or not to pay compensation to the bank.
In view of the many queries generated by this matter, that is, possible fees to be paid by bank customers when they want to amortize, in whole or in part, in advance, their mortgage loans, please find attached (HERE) the Resolution of December 2, 2024, of the Bank of Spain, which publishes the indexes and reference rates applicable for the calculation of the market value in the compensation for interest rate risk of mortgage loans, as well as for the calculation of the differential to be applied to obtain the market value of loans or credits that are cancelled early.
In this regard, it should be remembered that mortgages signed after December 9, 2007, in the event of early cancellation (total or partial), the financial institution, in addition to the compensation or cancellation fee, may charge an amount for interest rate risk compensation. In order to calculate the maximum limit to be charged, the mathematical formula regulated by the applicable legislation must be taken into account, for which the values published in this Resolution, which is updated monthly, must be taken into account.
In any case, if you wish to obtain more information about this calculation, HERE you can also access an article in our blog, which has been widely distributed, where you can find practical information on how to perform these calculations and check whether the bank is correctly applying the fees that may or may not be charged.
Unregistered foreign companies and sufficiency judgment. It will be necessary to be very careful
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of September 25, 2024 (BOE of November 7, 2024), in which the General Directorate solves a case related to a deed of formalization of transfer of mortgage guarantees, in which, the most interesting, is everything related to the outline of the power of attorney that empowers the representative of a foreign company not registered.
The case deals specifically with a deed of assignment of mortgage guarantees, where the assignee company (Irish and not registered in Spain), is represented in the act by an attorney-in-fact. The authorizing Notary, when reviewing the special power of attorney, simply identifies it (with date and name of the authorizing Notary) and states that he considers it sufficient for the granting of the power of attorney.
Once presented for registration, the Registrar to whom the deed is presented considers that the summary of the power of attorney is insufficient, a criterion that is confirmed by the Directorate General, which, in its Resolution, determines that the powers of attorney of foreign companies, since they are not registered, are subject to the doctrine of the STS of June 1, 2021 for the unregistered powers of attorney of registered Spanish companies, Therefore, the authorizing notary must, under his responsibility, rigorously check the validity and validity of the power of attorney granted by said company and record that he has carried out such action, in such a way that the authentic document from which the representation is derived expresses the circumstances which, in the notary's opinion, justify the validity and validity of the power of attorney in the exercise of which the attorney-in-fact is acting.
Thus, in particular, in the judgment of sufficiency of the power of attorney, the identity of the grantor of the power of attorney, his personal circumstances, and whether or not he holds an organic position in the company must be stated.
8.- Purchase and sale of real estate by company and essential assets
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 6, 2024 (BOE of November 22, 2024), in which the General Directorate resolves a case related to a deed of sale, in which the selling party is a company. In the deed of sale there is no statement of the selling company about the non-essential nature of the transferred asset and there is no agreement of the General Meeting of Shareholders.
The Property Registrar denied the registration, considering that a resolution of the General Shareholders' Meeting (which was not provided) is required for the acquisition or disposal of a corporate asset that may be considered essential.
After the corresponding appeal was filed, the DG resolved the same by revoking the qualification note, thus reiterating its doctrine according to which there is no obligation to provide a certificate or to make an express statement by the administrator that the asset object of the documented business is not essential, although the statement contained in the deed on the non-essential nature of such asset improves the position of the counterparty as regards its duty of diligence and assessment of the serious fault. However, the omission of this express manifestation is not in itself a defect that prevents registration.
Resolution of the purchase contract and registration in the Land Registry when there are creditors with registered rights.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 4, 2024 (BOE of November 22, 2024), in which the General Directorate resolves a case related to the registration of a judicial sentence where a purchase-sale is declared resolved.
The assumption is based on a purchase and sale (where the buyer, in order to finance the purchase, requests a mortgage loan, which is registered at the time of formalizing the purchase and sale). Once the purchase-sale is formalized, disagreements arise between the parties, which end up with a judicial conflict. This judicial procedure concludes by declaring the purchase-sale resolved, that is to say, leaving it without effect, and the parties must return to each other the reciprocal benefits (that is to say, the property to the seller and the price paid to the buyer).
Once this judgment has been presented for registration in the Land Registry, the interesting position of the mortgagee arises, who has legitimately registered his right before this whole dispute arises and is resolved.
At this point, the DG, aligning itself with the criterion of the Registrar, resolves that, in these cases, in order to be able to register the resolution of the sale and purchase (that is, that the house ceases to be in the name of the "buyer" and returns to be registered in the name of the "seller"), it will be necessary, first of all, to prove the deposit of the amounts owed and, above all, to prove the consent of the creditor bank (i.e., the bank holding the mortgage right in rem will have to give its consent ), the bank holder of the real right of mortgage will have to consent to it), since not having the claim noted at the time of the appearance of the mortgage holder, by imperative mandate of the Mortgage Law (articles 20, 37, 40 and 82) the cancellation or modification of the entries of subsequent holders is prevented without their express or tacit, voluntary or forced consent.
Therefore, be very careful in these litigious situations, because beyond the judicial victory, it will be necessary to negotiate with the creditor bank in order to get the debt cancelled and to get the bank to agree to the registration of the resolution of the purchase-sale, otherwise, it will not be possible, and the judicial victory will be blurred.
10.- Registration of real estate in the Property Registry in favor of a civil society with a non-commercial purpose.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of November 18, 2024 (BOE of December 18, 2024), in which the General Directorate resolves a case related to a deed of sale, in which the purchasing party is a civil society, initially formalized in a private document, and subsequently elevated to public (but without registration in the Commercial Registry), whose object is the exploitation of agricultural/livestock activity.
When presented for registration, the Property Registrar denied the registration, alleging that when the civil society has a mercantile purpose, it is essential that, in order to be able to register title to real estate in its favor in the property registry, it must be previously registered in the mercantile registry, considering the Registrar that, in the present case, the purpose of the society is the agricultural/livestock exploitation, that is to say, a clear mercantile activity.
Upon appeal, the DG revoked the qualification note, considering that the purchasing company is a civil company formalized in a public deed, duly constituted, with a non-commercial purpose (art. 326 of the Commercial Code), so that the requested registration should be made in the name of the purchasing civil company.
