Practical Legal Notes - June 2025

1.- Electronic certified true copies (with CSV) can be submitted to the Land Registry and must be accepted by the Land Registry.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of April 25, 2025 (BOE of May 23, 2025), in which the General Directorate resolves a case related to a public deed that is presented in electronic authorized copy format with CSV through the Electronic Headquarters of the Association of Property Registrars.

Once this deed has been presented, the Registrar refuses the filing entry, as he considers that the Notary's authorization of the document provided cannot be verified and guaranteed by this means.

Once the corresponding appeal was filed, as it could not be otherwise, the qualification was revoked, and the General Directorate resolved that, in effect, the electronic authorized copies issued by the notaries, with their corresponding CSV, are fully valid to cause a filing entry (and its subsequent registration, if applicable) in the Land Registry, since the Registrars, through a restricted computer portal at their disposal, can download the document with the electronic signature of the Notary and thus verify its authenticity and full validity, in order to produce the corresponding registry effects.

2.- It is possible to "speed things up" and sell the assets of an inheritance without previously liquidating and adjudicating it.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of May 8, 2025 (BOE of June 9, 2025), in which the General Directorate resolves a case related to a deed of elevation to public deed of a contract of sale. The relevant facts of the case are the following:

• The property initially belonged to a married couple, 50% jointly and severally.
• This couple had only one child.
• After some years, the husband died (without a will).
• In view of this death, the only son is declared sole heir intestate by means of the corresponding notarial act.
• Subsequently, the surviving spouse (the mother) and the son (now sole heir abintestato) formalize a private agreement of dissolution of community property and distribution and adjudication of the inheritance (that is, without a public deed and without registering the inheritance in the Land Registry), where the son is awarded the undivided half of his deceased father's estate.
• By virtue of his status as heir and this private agreement, the son proceeds with the sale of his undivided half (which the mother also consents to).

Once the deed is presented for registration, the Registrar refuses the registration, based on the principle of successive tract, since in the Registry, that undivided half is registered in the name of the father, so that, in order for the son (now heir) to be able to sell that half, it is necessary that the inheritance is previously registered, that is, that the liquidation of community property and adjudication of the inheritance in favor of the son is formalized in a public document and registered in the Registry.

After the corresponding appeal, the General Directorate revoked the qualification note, based on its doctrine of abbreviated successive tract, by virtue of which it is possible to register the sale of singular assets of the inheritance made by all the heirs, without prior partition and adjudication of the inheritance and its assets, provided that their call to the inheritance is accredited with the corresponding inheritance title and its complementary documents, as well as the prior compliance with the obligations related to the Inheritance Tax.

3.- Tax flash: how is the donation of real estate to a company taxed?

Attached (HERE) link to a video of Fiscal Flash of the Notarial Association of Catalonia, where the notary of Barcelona Mrs. Elena Cantos comments on an informative consultation of the Tax Agency of Catalonia (specifically the 94/24), which deals with the query made by an individual on how to tax a donation of real estate from an individual to a company.

The ATC considers that in the contribution of the property made by the partner to the company free of charge, it is necessary to take into account art. 3.2 of Law 19/1987 (Inheritance and Gift Tax Law) which provides that capital gains obtained for profit by legal entities are not subject to ISD, but are taxed under Corporate Income Tax (Law 27/2014), so that the deed documenting the donation of the property to the company must be taxed under the legal acts modality (as the IS is compatible with the IAJD and the other requirements are met).

4.- A general shareholders' meeting convened in a manner different from that provided for in the bylaws is not valid.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of May 7, 2025 (BOE of June 7, 2025), in which the General Directorate resolves a case related to a deed of dissolution and liquidation of a company, with the following key facts:

• The notice of the general meeting is published in the "Official Gazette of the Mercantile Registry" and in one of the newspapers with the largest circulation in the province where the registered office is located.
• However, according to Article 11 of the bylaws of said entity, "the administrative body shall summon the members to the holding of any General Meeting, by means of telegraphic correspondence or duplicate writing delivered personally upon receipt of which the signature of the member acknowledging receipt is obtained".

When this deed was presented for registration, the Registrar refused to register it, considering that the meeting adopting the resolution had not been convened in accordance with the requirements established in the corporate bylaws.

Upon appeal, the qualification was confirmed by the General Management, considering that when the bylaws specify that the form of notice of the general meeting to be sent by registered letter with notice of receipt (or similar), the specific characteristics of the notice of the meeting are determined, without it being within the competence of the administrative body to modify it, this being so because the shareholders have the right to know the specific form in which they are to be summoned, so that this is the only form in which they will expect to be summoned and to which they will have to pay attention.

5.- The tenants of VPOs must assume the expenses of the community of their dwellings if so established by the autonomous community regulations

Attached (HERE) link to the Sentence of the Supreme Court, Chamber I, number 2129/2025, of May 9, in which the high court resolves a dispute regarding who must assume the expenses of the community in rented VPOs (i.e., the tenant or the administration owner of those VPOs).

In order to resolve the dispute, the Supreme Court recalls that the first additional provision of the LAU (paragraph 8) establishes that public housing leases shall be governed by the specific rules of the latter, which are the regional rules on this type of leased housing. Thus, in the specific case, the autonomous regulation (that of Madrid) allows the lessor to receive, "in addition to the initial or revised rent, the actual cost of the services enjoyed by the tenant and paid by the lessor", as long as this is stated in the contract, as was the case, so that, in effect, in this case, it corresponds to the tenant of VPO to pay the expenses of the community of his dwelling.

6.- Mortgage and distribution of liability between properties. It is not necessary that the table of distribution of responsibility attached to the deed be signed by the parties.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of May 23, 2025 (BOE of June 23, 2025), in which the General Directorate resolves a case related to a loan deed with mortgage guarantee, which has the particularity that in the same one a mortgage is constituted on two properties, and it is stated that the distribution of the mortgage responsibility is made in a sheet attached to the deed (which is provided without signature).

When this deed was presented to the Land Registry, the Registrar qualified it negatively, considering that there are doubts as to the authenticity of the distribution table, since it is contained in an attached document that lacks any signature legitimated by a person with sufficient powers.

After the corresponding appeal, the Directorate General revoked the qualification note, considering that in these cases, and in accordance with art. 154 of the Notarial Regulations, "the signature of the grantors and witnesses will not be necessary in the partitions and other documents that are notarized, even when they are drawn up on ordinary paper, duly reinstated, if the public instrument by which they are notarized is on stamped paper". Thus, it is unequivocally clear that the documents incorporated into the deed itself become an integral part of it for all purposes, so that there can be no doubt as to the authenticity of the mortgage distribution table, even if it is not signed by the parties.

7.- Deed of dation in payment of debt. It is necessary to prove the means of payment that have given rise to that debt (to avoid fictitious debt acknowledgements), being the debtor company's accounting a suitable means.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of May 23, 2025 (BOE of June 23, 2025), in which the General Directorate resolves a case related to a deed of dation in payment of debt, by virtue of which, a company gives to two of its partners a property, in partial payment of a debt of more than 900,000 euros.

In the aforementioned deed of acknowledgment of debt, the grantors stated that, in the past, due to the lack of liquidity of the company, the partners lent more than 900,000 euros to the company, these contributions being reflected in the company's accounts, being able to be accredited where necessary, as stated in a major account document that was exhibited to the authorizing notary and incorporated into the aforementioned deed.

Once the deed was presented for registration, the Registrar refused to register it, alleging that the means of payment for the amounts contributed by the partners to the company and which are subject to compensation were not identified.

After the corresponding appeal, the General Directorate revoked the qualification note, considering that the debts extinguished by the assignment are perfectly causalized and identified in the general ledger, with the probative value attributed by law to such accounting, so that the hypothesis of fictitious debt acknowledgments that would remain outside the possibility of detection, verification and regularization of tax non-compliance or money laundering regulations is excluded.

Incorporation of a subsidiary company and certificate of agreement of the administrative body of the company that incorporates it. It is not necessary to state the names of the attending directors adopting the resolution.

Attached (HERE) curious Resolution of the General Directorate of Legal Security and Public Faith of May 23, 2025 (BOE of June 23, 2025), in which the General Directorate solves a case related to a deed of incorporation of a limited company, with the following key elements:

• A company (let's call it "X") decides to set up a new sole proprietorship, and to this end, it adopts a resolution within its board of directors.
• Once the resolution is adopted by the board of directors of the parent company, a certificate of the board resolution is issued (by the persons empowered to do so) so that the new subsidiary can be incorporated. The certificate of the board resolution does not include the names of the directors attending the meeting at which the resolution was adopted.
• Finally, a director of company "X", in execution of this agreement, and under the protection of this certification, goes to a Notary Public and formalizes the deed of incorporation of the subsidiary company.

Once this deed of incorporation was submitted for registration, the Registrar refused to register it, alleging that the certificate of the resolution must contain the names of the directors who adopted the resolution.

After the corresponding appeal, the qualification was revoked by the General Directorate, which reminded us that the requirement of stating the names of the members of the board of directors who attended the meeting at which the resolution was adopted is a requirement for the registration of the resolutions of the board of directors insofar as they refer to their own company, but not in the execution of a resolution that refers to a new subsidiary company, as in this case, so that this detail is not required in the certificate of the resolution of the board of directors.

9.- Mortgage as security for a guaranty. It is possible to specify the amount of the secured obligation in the future.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of March 26, 2025 (BOE of May 19, 2025), in which the General Directorate resolves a case related to a mortgage loan deed, with the following key elements:

• A company requests a loan from a financial institution.
• The financial institution, in order to grant this loan, requires a guarantee, which is provided by a mutual guarantee company.
• This reciprocal guarantee company, in order to secure the repayment of the guarantee, requires the creation of a mortgage on a property owned by the company.
• In that mortgage, it is agreed that the concretion of the guaranteed future obligation (which will depend on the amount that the guarantor must finally contribute if the guarantee becomes effective), will be specified by means of the unilateral granting by the mutual guarantee company of a certificate recording the balance of the account and a notarized certification of such balance.

Once the deed is presented for registration, it is negatively qualified, since the Registrar considers that the secured obligation is not determined, which would give rise to a null registration under art. 30 LH.

Upon appeal, the Directorate General revoked the qualification note, considering that in this case the principle of specialty is not infringed, since the mortgage loan deed expressly and concisely specifies the items from which the amounts that may be owed in the future by the mortgagor as a consequence of the breach of the guarantee policy secured by the mortgage are derived.

10.- Registration of dissolution and liquidation of marital partnership of foreigners. It is necessary to provide the NIF of both

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of April 9, 2025 (BOE of May 21, 2025), in which the General Directorate resolves a case related to a deed of dissolution and liquidation of marriage of two foreign persons (of Swiss nationality), by virtue of which, a distribution of assets is made between two divorcing persons. The deed does not contain the tax identification number of the ex-husband who assigns his property rights to the ex-wife over the property in question.

When presented for registration in the Property Registry, the same is negatively qualified, among other issues, because the NIF of the ex-husband, who assigns his property rights over the property in question to his ex-wife, is not included.

The corresponding appeal was lodged and the qualification note was confirmed by the Directorate General, ruling that, in accordance with art. 23 LN and 156.5 RN, it is compulsory for the deed to include the NIF of the grantors when "acquiring, declaring, constituting, transferring, encumbering, modifying or extinguishing the ownership and other rights in rem over real estate", or of a different act or contract, but with tax transcendence, In these cases the obligation of accreditation and proof of the respective tax identification numbers extends to the persons appearing and to the persons or entities in whose representation they act, regardless of whether their contractual position is that of transmitters or constituents of the respective real right or as acquirers of the same.