Practical Legal Notes - February 2025

1.- New regulations on leases in Catalonia

It is linked (HERE) with the Decree law 1/2025, of 28th of January, of urgent measures in the matter of containment of yields, which introduces important novelties in the matter of housing leases for the Catalan area. Specifically:

• New obligations are introduced regarding the advertising of rental property advertisements (such as details of the last rent of the property rented during the last 5 years, the purpose of the contract, or the status of the owner of the property as a major tenant).
• Very serious penalties (from 90,000 to 900,000 euros) are introduced for the following conducts:
  
  • Establishing a rent that exceeds more than the maximum 30% allowed in a lease subject to a price containment regime.
  • Failure to state the purpose (or stating a simulated/false one) in the lease.
  • Charge real estate management or contract formalization costs to the lessee.
• Prosecution of fraud in housing intended for permanent rental that masquerades as "seasonal" rental contracts, with the imposition of heavy penalties.

Reference is also made to Decree Law 2/2025 (HERE which, in Catalonia, establishes a new right of first refusal in favor of the administration in the case of transfers of dwellings located in areas with a stressed residential market, when the seller is a large holder legal entity ( it should be noted that until the Registry of large holders is set up, it is obligatory that , when the seller is a legal entity, a registry certificate must be included in the deed of sale , detailing the details of the property in question, the regulation obliges that, when the seller is a legal entity, a registry certification must be included in the deed of sale, detailing the number of dwellings owned, which must be attested in the title deed ).

2.- Novelties for the call of general meetings of companies in crisis.

Among the many novelties brought to us by Organic Law 1/2025, of January 2, on measures for the efficiency of the Public Justice Service (HERE), in commercial matters it is interesting to highlight an amendment to art. 365.3 LSC, by virtue of which "The administrators will not be obliged to call a general meeting to adopt the resolution of dissolution when they have duly requested the declaration of insolvency of the company or informed the competent court of the existence of negotiations with creditors to reach a plan for the restructuring of assets, liabilities or both. The meeting must be called within two months after the effects of such communication cease to be in force".

With this reform, a period of two months is granted to convene the AGM (i.e., more time to manage the business crisis situation), from the time the effects of the communication to the court cease to be in force as negotiations with creditors are initiated to reach a restructuring plan, since to date, with the previous wording, the administrators had to convene the meeting immediately after the failure of negotiations with creditors, in the event of a cause for dissolution.

3.- Differences between the division or segregation of a private element of a property subject to horizontal property and its functional division, and the implications that this has at the level of authorizations of the community of neighbors.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 5, 2024 (BOE of February 21, 2025), in which the General Directorate resolves a case related to a deed of sale in which an undivided participation of 10.27% of a property is sold, which gives the right to the exclusive use of a storage room. In the CV deed it is detailed that the selling party has distributed the premises in 10 independent storage rooms with the purpose of its transmission by shares, counting for this purpose with the corresponding municipal permits.

Once the deed is presented for registration, it is negatively qualified by the Registrar, alleging that we are dealing with a division of the property, for which the corresponding agreement of the community of owners is required, since it is a property subject to the horizontal property regime.

The corresponding appeal was filed before the DG, which revoked the qualification note, considering that in this case we are not dealing with a division of the property (since neither its extension, boundaries, quotas, constitutive title nor the organic functioning of the community are modified), but with a community of a functional nature by reason of destination in which new co-owners are simply incorporated to the community of neighbors, so that, not being prohibited by the bylaws of the community, the agreement of the community required by the Registrar is not required.

4.- In mortgage loans to legal entities, it is mandatory for the debtor to detail both a physical address and an email address of the company.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of December 30, 2024 (BOE of February 6, 2025), in which the General Directorate resolves a case related to a mortgage loan deed between two mercantile companies, in which, as domicile of the debtor company, only an Email is detailed, and not a physical address for the purpose of notifications and summons.

Initially, the Property Registrar denied the registration for this reason, being this criterion confirmed by the General Directorate, thus resolving that, in accordance with the current LEC, in the case of legal entities, both a physical address and an e-mail address are mandatory.

5.- Notarial Minutes of the Meeting Who can make the request to the Notary?

Attached (HERE) link to the Sentence of the Provincial Court of Valencia number 260/2024, of November 19, where a curious case is solved, related to the request of presence of a Notary Public to draw up the notarial minutes of the Meeting, analyzing who has legitimacy to carry out such requirement.

In the specific case, we are dealing with a company involved in a corporate conflict, where the request to the Notary is made by the Chairman of the Board of Directors, and the Court resolved that, in fact, this competence corresponds to the Board of Directors as a collegiate body, as established in art. 203 LSC ("the administrators").

6.- Interpretation of bank powers of attorney when the sufficiency judgment must be complemented by a private document of the principal.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 4, 2024 (BOE of February 21, 2025), in which the General Directorate resolves a case related to a deed of sale, where a bank sells a house of its property to a third party. The controversy of the case arises from the fact that the bank, in the VC, appears represented by an agency, by virtue of a power of attorney in which it is established that, for this case of sales, a specific authorization for the sale must be provided (in a private document subscribed by representatives of the bank), with their signatures notarized. In the specific case, this authorization of the bank is presented, the signatures of which are legitimated by the Notary as they coincide with others that were recorded in their indicator book.

Once the deed was presented for registration, the Registrar refused the registration, alleging that the notarization of the signature by the Notary was null and void, since the same, being a declaration of will, should be made in the presence of the Notary (second paragraph of art. 259 NR).

After examining the case, the DG disagrees with the opinion of the Registrar and revokes the qualification note, considering that the agility in the legal traffic must prevail, as well as the freedom of choice of the internal control mechanisms of the appointing entity and its own acts in many similar cases, so that, in view of this, it is appropriate to accept as valid the notarization of signatures performed by the Notary, that is, by comparison, without it being necessary for the notarization to be performed by signature in the presence of the Notary.

7.- Mortgage loan from a commercial company to an employee. Requirements to be subject, or not, to LCI.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of December 30, 2024 (BOE of February 6, 2025), in which the General Directorate resolves a case related to a mortgage loan deed between a commercial company and an employee, which is formalized without being subject to the provisions and guarantees of the LCI, since in said deed it is alleged that the company's corporate purpose is not the habitual granting of loans and that, also, the loan is granted under more advantageous conditions than those of the market given the relationship of trust that exists with the debtor due to the fact that he is an employee of the company.

The Land Registrar refuses the registration, which brings the case to the DG, which, reiterating its doctrine, reminds us that, in this kind of operations, if the PH is granted by a legal entity that intervenes with certain regularity in the financial market, in favor of a natural person, who has the condition of consumer, and which is secured by a mortgage on a dwelling, the LCI will apply, unless it is a loan granted by an employer to its employee (which must be evidenced by documents), on an ancillary basis, whose Annual Percentage Rate is lower than that of the market, and which is not offered to the general public.

Finally, as in the specific case, the condition of employee has not been documented and the APR of the transaction has not been detailed, the Registrar's qualification note is confirmed.

8.- Communities of neighbors and limits to the use of dwellings in the building. Differences between sectorially regulated tourist rental and tourist activities in general terms.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 6, 2024 (BOE of February 21, 2025), in which the General Directorate resolves a case related to a deed of modification of horizontal property regime, by means of which, a new statutory clause is introduced in the statutes of the community of owners to limit the use of the houses to tourist offer or any other way of commercialization with tourist accommodation purposes, being approved this agreement by a majority of 3/5 parts of the community.

Once presented for registration in the Registry, the deed is negatively qualified, since the Registrar considers that unanimity is necessary to adopt the agreement, since the exception of the LPH that allows limiting the use of tourist dwellings regulated in the tourist sectorial regulations, without the unanimity rule, is not extensible to agreements related to other types of generic tourist uses, such as the use of lodging or tourist dwellings in a regime different from the specific one derived from the tourist sectorial regulations (that is, for example, vacation rentals).

The DG, confirming the criterion of the Registrar, reminds us that the current LPH allows to limit by a majority of 3/5 the exercise of tourist activities in the terms established in the tourist sectorial regulations, but not to the tourist use in general when it is not subject to a specific regime of sectorial regulations (such as lodging, or vacation), in which case, the unanimity of all the co-owners will be required to establish such limitation.

9.- Merger by absorption and report to the employees. Cases in which the report may be dispensed with.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of December 16, 2024 (BOE of February 7, 2025), in which the General Directorate resolves a case related to a deed of merger of two SL, being the absorbed company a SLU wholly owned by the absorbing one, in which, no report of administrators or independent expert is provided, since it is stated that the absorbed SLU has no employees and therefore the merger has no effect on employment.

Once it was submitted for registration, the Commercial Registrar qualified it negatively, alleging that it is also necessary to make available to the employees the report of the administrative body referred to in Article 5 of RD-Law 5/2023.

Upon appeal of the aforementioned classification, the DG revoked the same, ruling that, in view of the specific circumstances of the case (i.e., that the absorbed company has no employees, that it is wholly owned by the absorbing company and that it is stated that the merger has no effect on the absorbing company's employment), in this case it is not necessary to provide the report in question.

10.- In order to grant loans in a professional manner, you must be registered in the corresponding administrative registry.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of February 4, 2024 (BOE of February 21, 2025), in which the General Directorate resolves a case related to a mortgage loan deed granted by a commercial company that is professionally dedicated to it, which is not registered in the special Registry created by Law 2/2009, of March 31, at the National Institute of Consumption.

Having qualified the deed for this reason, the DG confirms the defect, ruling that any company engaged in the granting of loans in a professional manner in favor of consumers, in addition to its registration in the Registry of Lenders of the Bank of Spain, must be registered in the special Registry created by Law 2/2009, of March 31, at the National Institute of Consumer Affairs (or, if applicable, duly registered in the Registry of the Autonomous Community where it has its registered office, together with the corresponding notification to the Registry of the National Institute of Consumer Affairs).