Practical Legal Notes - July 2024
1.- New collective bargaining agreement for notary's office employees
Attached (HERE) the Resolution of June 20, 2024, of the Directorate General of Labor, which registers and publishes the III State Collective Bargaining Agreement for Notaries and their employees, which will regulate the labor relationship between Notaries and their employees for the years 2024, 2025 and 2026. To take as a reference standard to regulate the labor relations between Notaries and their employees.
2.- Heir of trust in Catalonia and impossibility of adjudicating inheritance assets for himself on the basis of said revealed trust.
Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of July 15, 2024 (BOGC of July 23, 2024), in which the DG resolves a case related to the Catalan civil law institution of the heir of trust, by virtue of which the testator, in his will, can institute heirs or legatees of trust to specific natural persons to give the assets the destination that he has confidentially entrusted to them, by word of mouth or in writing (art. 424-11 CCCat).
In this figure, however, the law (art. 424-15 CCCat) determines the ineffectiveness of the dispositions of trust in case the heirs or legatees named reveal it or fulfill it in their favor, that is, they award for themselves the assets of the inheritance, which is precisely what happens in this case, where two nieces intend to award themselves a property of their deceased aunt through this way, something not allowed by law, and thus confirmed by the Direcció General.
3.- Sale of new self-developed buildings before 10 years and obligation to take out ten-year insurance coverage at the time of sale
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 9, 2024 (BOE of July 23, 2024), which resolves a case related to the sale of a property where there is a new construction, with an age of less than 10 years, where the obligation to prove the existence of the ten-year insurance is discussed.
As is well known, in accordance with the legislation in force (Law 38/1999, on Building Regulation), it is compulsory to take out a ten-year insurance policy for new construction. However, the 2nd DA of Law 38/1999 determines that this guarantee will not be required in the case of individual self-builders of a single single-family dwelling for their own use.
In the event that the property is sold before these 10 years, this 2nd DA determines that the self-promoter, unless otherwise agreed, will be obliged to contract this guarantee for the time remaining to complete the ten years. Likewise, for this exemption to be valid, the law determines that the self-promoter must prove that he has used the property for his own use.
In the present case, the sale is made before 10 years have elapsed, and an attempt is made to prove that the property has been used by the self-promoter for his own use, but providing utility bills in the name of a company other than the registered owner (which happens to be a company of the same group, instrumental, for the tourist exploitation of the property), which, in the opinion of the Registrar, and also of the General Directorate, proves that the requirement demanded by the law (exclusive use by the self-promoter) is not met, so that it is necessary to prove the constitution of the corresponding insurance.
4.- Validity of a clause in the bylaws that allows the omission of the place where the general meeting is to be held to be avoided.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 9, 2024 (BOE of July 23, 2024), where the DG accepts a statutory clause that allows to save the omission of the place of celebration of the general meeting in the call.
Specifically, a deed of incorporation of a commercial company is authorized, whose bylaws (art. 9) state that "if the notice of meeting does not indicate the place where the meeting is to be held, it shall be understood that the meeting has been called to be held at the Company's registered office". Likewise, art. 23 of the Bylaws determines that "in all matters not provided for in these Bylaws, the provisions of the Capital Companies Act, or the rule that replaces it, and complementary legislation and regulations, shall apply".
The Registrar refuses the registration of this clause, considering that the provision that the meeting may be held anywhere in the national territory is not admissible, because it cannot be left to the discretion of the administrative body to decide where to hold each meeting it convenes (even if it complies with the requirements of form and advance notice), since the determination of the municipal district where the meetings are to be held constitutes a guarantee for the shareholders.
After the corresponding appeal was filed, the DG aligned itself with the criteria of the Notary, ruling that in this specific case, what is done in the Bylaws is simply a partial reproduction of Article 175 of the Capital Companies Law, only of its second paragraph, but this does not imply a defect that prevents its registration.
5.- Valid clause in the bylaws limiting the capacity of the administrative body to change the registered office within the municipality.
Attached (HERE) Resolution of the Directorate General of Legal Security and Public Faith of July 8, 2024 (BOE of July 23, 2024), where the DG resolves a case related to a deed of change of registered office of a company, whose bylaws contain the following provision "by agreement or decision of the administrative body, the registered office may be changed within the same municipal district". In the deed in question, the sole administrator changes the registered office from a property located in Madrid city, to another located in the town of Getafe.
The Commercial Registrar denied the registration, since in accordance with Article 3 of the Articles of Association, the administrative body is not empowered to change the registered office to a different municipal district; this criterion being confirmed by the General Directorate when resolving the corresponding appeal, considering that in effect, this provision of the Articles of Association is a provision contrary to the competence of said body to change it within the whole of the national territory.
6.- The purchase option that hides in reality a loan with a commissory covenant is not admissible.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of June 11, 2024 (BOE of July 12, 2024), where the DG resolves a case in which a purchase option with the following characteristics is presented for registration:
- The option price amounts to the sum of 5,500 euros, which is acknowledged to have been received by the grantors.
- The price of the future sale is fixed at 110,000 euros, of which 105,600 euros (representing 96% of the purchase price) is received when the option deed is executed "on account" of the agreed price.
- It is also agreed that the option cannot be exercised before 12 months.
Once this purchase option was presented for registration, the Registrar denied the registration stating that, in reality, we are not dealing with a purchase option, but with a loan with a letter of grace or a commission option (prohibited by law), this criterion being confirmed by the General Directorate. Thus, it is necessary to bear in mind that each legal business is for what it is, and different figures cannot be used to cover up in reality another class of legal business.
7.- The sale by a bankrupt company of a mortgaged property requires the prior cancellation of the mortgage charge in the registry.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of June 28, 2024 (BOE of July 17, 2024), where the DG resolves a case in which a bankrupt company sells a property of its property (a parking space) that was encumbered with a mortgage in favor of a bank, which is economically cancelled (a certificate of zero balance is provided), but not registered.
The Registrar refuses the registration, determining that it is essential that the cancellation (225 TRLC) be present in order to register the transfer, this criterion being confirmed by the General Directorate.
8.- Powers of attorney and judgment of sufficiency in the deed. It is necessary to correctly outline all the data of the power of attorney.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of June 20, 2024 (BOE of July 15, 2024), where the DG resolves a case related to a deed of sale, in which several selling parties formalize the transfer represented by proxy. The authorizing Notary, when reviewing said powers of attorney and making the sufficiency judgment, simply states that in his opinion the representative powers conferred on them in the power of attorney for the execution of the deed of sale are sufficient, without stating the identity and condition of the grantors of the power of attorney.
The Registrar denies the registration for this reason, and this criterion is confirmed by the General Directorate, determining that in the judgment of notarial sufficiency of the power of attorney, the expression of who were the persons who granted the powers of attorney, that their positions were valid and in force, and that they had sufficient powers to grant the representation on behalf of the principal, must be included.
9.- The attorney-in-fact of a company does not have the capacity to grant sub-proxies, unless expressly authorized.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of June 26, 2024 (BOE of July 17, 2024), where the DG resolves a case related to a power of attorney deed that is intended to be registered in the Mercantile Registry, in which, among other powers, the granting company grants the attorney-in-fact the capacity "to grant powers of attorney or powers of attorney, totally or partially and within the limits conferred to him/her, to the person or persons that he/she freely chooses, the granting company grants the attorney-in-fact the capacity to "grant powers of attorney or powers of attorney, totally or partially and within the limits that have been conferred, to the person or persons that it freely deems convenient to freely revoke the powers of attorney that may have been conferred".
The Mercantile Registrar denied the registration, alleging that in order for the attorney-in-fact to be able to grant new powers of attorney, the express consent of the administrative body is required (arts. 261 and 296 CCom).
The DG, aligning itself with the Registrar, determines that in the field of commercial powers of attorney, the very raison d'être of the power of attorney means that the power to substitute cannot be considered as susceptible in turn to substitution, since the initial grantor has granted it exclusively to the attorney in whom he has placed his trust, so that in order to be able to practice it successively (whether or not with limits) it must be made explicit with absolute and meridian clarity.
