Practical Legal Notes - May 2024
1.- A right of option to purchase a pharmacy can be constituted in favor of a commercial company.
Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of April 30, 2024 (BOGC of May 10, 2024), in which the DG resolves a case in which the owner of a pharmacy located in Palamós grants a purchase option on the same, in favor of a commercial company.
The Mercantile Registrar denied the registration of the real right of purchase option on the grounds that the ownership of a pharmacy can only be held by an individual pharmacist (and not by a legal entity, as constituted in this case), based, among others, on art. 586-1 CCCat and other sectorial regulations.
The DG revokes the negative qualification, and admits the registration, based on the fact that in the deed of incorporation of the purchase option right itself it is agreed that the right of the optionor can be assigned to a third party (who can comply with the legal requirement) and that, likewise, it is specified that, when the right is to be exercised, all the requirements established in the deed of incorporation and the other legal and administrative requirements must be complied with.
Testamentary dispositions in favor of the spouse become ineffective in a marital crisis.
Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of May 8, 2024 (BOGC of May 15, 2024), in which the DG resolves a case in which a gentleman, in his will, institutes as sole heir to his wife, with a series of substitutions. Years later, the marriage is legally separated (with the corresponding judicial sentence) and, finally, the husband dies.
The wife intends to award herself the inheritance (among the assets, a real estate) on the basis of that will, which is rejected by the Registrar before whom the private request for acceptance of inheritance is presented, basically, on the basis of art. 422-13 CCCat, where it is determined that "the institution of heir, the legacies and the other dispositions that have been ordered in favor of the spouse of the deceased become ineffective if, after having been granted, the spouses separate in fact or legally, or divorce, or the marriage is declared null, as well as if at the moment of the death there is pending a lawsuit of separation, divorce or matrimonial nullity, except for reconciliation".
The DG confirms the qualification note, under the aforementioned precept.
3.- The total cancellation of the mortgage right in rem upon partial payment of the secured obligation is a taxable transaction.
Attached (HERE) Resolution DGSJFP of April 25, 2024 (BOE of May 17, 2024), in which the DG resolves a case in which the mortgagee (UCI), grants a total cancellation of a guarantee (real right of mortgage), before a partial payment of the pending debt (in the cancellation deed it is expressly recognized that part of the debt remains pending payment).
The Registrar denies the registration stating that, in such a case (partial payment), in accordance with the regional tax regulations, the transaction is subject to taxation (ITPAJD), so that the corresponding form accrediting the settlement of the tax must be submitted, since in accordance with art. 57 of DLeg 1/2018, the tax exemption in mortgage cancellations only corresponds when the payment (total, not partial) of the secured obligation occurs.
The DG confirms the qualification note, confirming that if the requirement that the cancellation be due to the (total) payment of the secured obligation is not met, the transaction is not included in the cases in which it is not obligatory to submit the corresponding tax settlement to the regional tax agency, so that in order for the cancellation to be registered, it will be necessary to settle the tax in question.
4.- Succession with will of United Kingdom. It is necessary to prove the fulfillment of the requirements demanded by the legislation of the United Kingdom in inheritance matters.
Attached (HERE) DGSJFP Resolution of April 29, 2024 (BOE of May 16, 2024), in which the DG resolves a case related to an international inheritance, where a testator, of British nationality and residing in England, grants a will in 2003 in London before a local notary. Finally, he dies in the year 2022, after which, the deed of adjudication of the assets that the testator has in our country is authorized in Spain, before a Spanish notary, based on the indicated will, all this under the protection of that testamentary disposition.
The Registrar refuses the registration since, as it is a will from the United Kingdom, it must be accredited that the "probate" or adveration has been obtained fromthe Authorities of that country and, also, because the legislation governing the succession, under the European Regulation on succession 650/2012, is not stated in the deed of acceptance of inheritance.
The DG fully confirms the qualification note, determining that, in this case, as there is no express "professio iuris" on the part of the deceased (i.e. choice of law applicable to his estate), it is required to provide the "probate" (result of a legal process to be followed in the United Kingdom through which a Court supervises and approves the distribution of the assets of the estate in favor of the heirs) as well as the express determination of the law applicable to the succession.
5.-Sale and purchase and means of payment. If the price is paid by check, it is obligatory to incorporate testimony of the same.
As a reminder, attached (HERE) DGSJFP Resolution of April 23, 2024 (BOE of May 15, 2024), in which the DG resolves a case that serves to keep in mind that, in the context of a sale of real estate, if the price is paid by check, it is mandatory to incorporate a testimony of the same to the deed of sale, otherwise, this will prevent the registration of the document.
6.- Declaration of new construction due to age and horizontal division. Be careful because, depending on the case, it may be necessary to obtain an urban planning license.
Attached (HERE) DGSJFP Resolution of April 24, 2024 (BOE of May 15, 2024), in which the DG resolves a case in which a deed is granted before a Notary, a deed of declaration by seniority of completed new construction and horizontal division, by virtue of which, within a plot where there was a dwelling, it is now declared that there are actually 2 independent dwellings, proceeding also to formalize a horizontal division of said property into two completely independent parts (i.e., it is declared that there are 2 dwellings and the existing land is divided between them, in an exclusive and excluding manner, with their independent surfaces, their own boundaries, etc.).).
The Registrar denies the registration alleging that, in this case, it is really an act of material division of property or subdivision, for which the corresponding administrative resolution of granting of urban planning license or municipal declaration of unnecessary use is required, this criterion being confirmed by the DG in the resolution of the corresponding appeal.
7.- Sale of real estate by a divorced person. It is not necessary to provide the regulatory agreement approved by the court.
Attached (HERE) DGSJFP Resolution of April 24, 2024 (BOE of May 15, 2024), in which the DG resolves a case in which a divorced person (previously married in a conventional regime of separation of property), sells a property of his property, stating that the property object of sale does not constitute the habitual and permanent residence of his family.
The Registrar refuses the registration on the grounds that, in such a case, it is necessary to provide the corresponding judicially approved regulatory agreement, from which it is clear that the use of such property is not attributed to the former spouse or, otherwise, the ratification of the latter, without the unilateral statement of the transferor that the property being transferred "does not constitute the habitual and permanent residence of his family" being sufficient.
The Notary Public authorizing the document presented the corresponding Appeal before the DG, which was upheld, considering that in such a case, since there is no record in the Registry or in the qualified document that the use of the dwelling has been attributed to another person, there is no rule that imposes the obligation to exhibit the corresponding judicially approved regulatory agreement, from which it appears that the use of the dwelling is not attributed to the former spouse, or, otherwise, the ratification of the latter.
8.- Amendment of the bylaws and the right to information for shareholders. It is not necessary to expressly include the right of the shareholders to examine the full text of the proposal in the notice of the meeting if the full text of the resolutions is included in the notice of the meeting.
Attached (HERE) DGSJFP Resolution of April 16, 2024 (BOE of May 15, 2024), in which the DG resolves a case in which a modification of the corporate bylaws (transfer of domicile, change in the structure of the administrative body, form of convening the meetings, etc.) is made public. In the specific case, the agenda of the notice of the general meeting contained the full text of the resolutions to be debated, as well as the new wording of the articles of the articles of association proposed to be amended.
The Mercantile Registrar denied the registration on the grounds that the right of information to the shareholder (art. 287 of the Capital Companies Act) had not been duly respected, by virtue of which the shareholders have the right to examine, at the registered office, the full text of the proposed amendment.
Against this classification, the corresponding appeal was lodged, which was upheld by the Directorate General, determining that the notice of the general meeting clearly stated the content of the amendment to the bylaws and the full text of the resolutions submitted for debate, as well as the new wording of the articles of the bylaws whose amendment was proposed (and, in the specific case, moreover, the three sole partners were also joint and several directors of the company, and therefore not only had the right but also the duty to be informed of the progress of the company's affairs and could access all the company's documentation, and there is no evidence that the non-convening joint and several directors were prevented from accessing this information).
9.- The extinction of condominium on real estate acquired on the basis of different titles of ownership is subject to stamp tax.
Attached (HERE) Sentence of the Supreme Court 2218/2024, of April 30, where a case is resolved in which two brothers are co-owners of 3 properties, of which, 2 of them are acquired by purchase and sale, and the third one, by donation of a relative. After some time, the brothers formalize the dissolution of the condominium of the 3 properties, presenting it as if it were a single community.
In view of this procedure, the regional tax administration initiated a value verification procedure, in which it finally classified the transaction as an exchange, and it was therefore necessary to pay tax for it under the Onerous Transfer of Property Tax, since it considered that the assets over which they shared ownership formed two different communities of property in view of the different acquisition titles.
The case finally reaches the Supreme Court, which, revokes the criterion of the administration, determining that the extinction of two condominiums, formalized in public deed, when the two indivisible real estate properties on which one of the condominiums falls are awarded, which compensates the excess of awarding part in cash, part by the delivery of several movable properties and a real estate property that was the exclusive property of one of the co-owners, constitutes for the said awardee a case of not being subject to the modality of Onerous Property Transfers, and must therefore be taxed by the gradual quota of the modality of documented legal acts, without it being relevant for tax purposes that the awarded goods had been acquired and incorporated to the condominiums by virtue of different titles of acquisition.
10.- The acquisition for valuable consideration of the third party in good faith is protected by the public faith of the extension of the registration of the entry of presentation of the title in the land registry.
Attached (HERE) Sentence of the Supreme Court 2171/2024, of April 8, where a case is solved referring to the constitution of a mortgage on a property, property of a co-owner who was awarded in a dissolution of condominium that later is declared invalid by the courts of justice. In the specific case, the extinction of the condominium and the mortgage are signed on the same day, simultaneously and consecutively in the corresponding Notary's office.
The Supreme Court resolves that the protection of the public faith of the third party acquirer in good faith operates from the moment in which the filing entry is made in the Land Registry, so that, in the specific case, as when the mortgage was signed, the extinction of the condominium had not yet been filed in the Registry (so that the filing entry did not yet exist), the right of the bank is not protected by the public faith of the registry of art. 34 LH, so that when the registration of the extinction of the condominium was declared invalid, the registration of that right in rem mortgage should also be annulled. 34 LH, so that when the extinction of the condominium is declared invalid, the registration of the mortgage right in rem must also be annulled.
11.- Right of first refusal in real estate transactions of large holders in Catalonia.
It is reported that the Catalan Decree Law 6/2024, of April 24, on urgent housing measures (HERE) has not been validated by the Parliament of Catalonia, so that the right of first refusal in transfers of large legal entity holders indicated in the April newsletter remains without effect.
12.- Partition of inheritance in common law. It is not necessary to notify to the legitimario the partition by the testamentary accountant-partidor to be able to register the real estate adjudicated to the heirs.
Attached (HERE) Resolution DGSJFP of April 23, 2024 (BOE of May 15, 2024), in which the DG resolves a case regarding a partition of inheritance of a lady, deceased with will, in which, she bequeaths the usufruct of the inheritance to her husband, appoints 3 of her children as heirs, and to a fourth daughter, she bequeaths the strict legitimate that corresponds to her (empowering the heirs to pay this legitimate in cash, even extra-heirship). In the deed of partition, the distribution of the inheritance is made among the heirs, and as regards the bequest of that daughter, it is determined that, among the assets of the inventory, there was a balance in a savings account from which the legatee of the strict legal reserve is awarded the amount necessary for the payment of the same, expressing that "this amount, once the bequest is accepted and the tax is settled, will be transferred to the account indicated by the legatee".
Once this deed was presented for registration in the Land Registry, the Registrar denied the registration of some properties in favor of the heirs because in his opinion, in accordance with art. 844 of the Civil Code and art. 80 of the Mortgage Regulations, it is necessary that the existence of this legitimate right be made known to the beneficiary (by means of a deed or other public document), within a period of one year.
After the corresponding appeal, the DG revokes the qualification note indicated, determining that there is no specific provision in the law, nor pronouncement in the jurisprudence, nor doctrine, by which, in the case of partition carried out by the testamentary accountant-partidor, the prior knowledge by the legitimatist or at least his notification to him, is required for the registration of the partition.
13.- Dissolution and liquidation of a company. It is not necessary for the final liquidation balance sheet to comply with the general accounting plan.
Attached (HERE) Resolution DGSJFP of April 23, 2024 (BOE of May 15, 2024), in which the DG resolves a case related to a dissolution and liquidation of a SL, to whose deed is attached a liquidation balance sheet where there are no creditors, with a series of asset items, and with liabilities equal to 0.
The Registrar denies the registration, alleging that there is an error in the final liquidation balance sheet, since fundamental items are missing (such as the capital stock) and because, likewise, liabilities and assets should be equal.
Upon appeal, the DG revoked the qualification note, arguing that the final liquidation balance sheet operates as a closing account, and therefore it is not necessary to include it in the rules regulating the structure and content of the ordinary balance sheet of a corporate year (and also because the statements in the deed may reflect relevant data for registration, such as, for example, the amount of capital stock that does not appear in said balance sheet).
