Practical Legal Notes - November 2024

1.- New moratorium for those affected by the DANA

Attached (HERE) link to an article of the blog of the notary's office, where reference is made to the new moratoriumfor loans owned by those affected by the DANA.

Measure approved by Royal Decree-Law 6/2024 (HERE you can consult it) which provides for the establishment of a moratorium, applicable to mortgage loans and without mortgage guarantee, which are owned by persons affected by the DANA, of 3months of principal and interest, and 9 additional months of suspension of the repayment of the principal. For details of the measure, potential beneficiaries, requirements, application procedure, etc., please refer to the indicated blog article.

2.- In the deed of declaration of sole proprietorship of a company, for its registration, it is not necessary to previously accredit its presentation for the purposes of ITPAJD liquidation.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 16, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of elevation of corporate resolutions, in which, among other issues, the unipersonality of an SL is declared. Once presented for registration, the same is negatively qualified by the Registrar, alleging that for the qualification and registration it is necessary to accredit the presentation of the document for the purpose of the liquidation of the ITPAJD (corporate operations modality).

After the corresponding appeal was filed by the authorizing Notary Public, the DG aligned itself with the latter, ruling that in the specific case of this casethe requirement of prior presentation at the ITP settlement office could be understood as notapplicable, since it does notappear from the document presentedthat there is any act subject to any of the three types of taxation regulated by the ITPAJD Law.

3.- Notarized Minutes of the Meeting. It is necessary that the request of the shareholder is reliably notified to the administrator.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 17, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to anotarial actof general meeting, in which the shareholder owner of 25% of a SL requests the assistance of a notary at the next general meeting of the company. For this purpose, the request was made to a Notary Public in Vigo, who requested the assistance of another Notary Public, located in the town where the registered office of the SL in question is located, to carry out the corresponding request. However, when the deed is presented to the Mercantile Registry, there is no record of having received the reply from the notary's office requested to carry out the notification, whether or not the deed has been delivered.

The Commercial Registrar denies the requested registration, a criterion that is ultimately confirmed by the DG, since the minutes do not contain the reliable delivery of the notarized request to the company's administrators (to ensure that they have had knowledge of it), so that, in these cases, it is necessary to prove that the administrative body has received the notarized request where the shareholder requests the presence of a Notary Public at the company's general meeting.

4.- Last days to take advantage of the 2022 Code of Good Practices measures to alleviate the interest rate hikes

It is recalled that in a few days, that is,at the end of December of this year, the term granted by Royal Decree-Law 19/2022, which established a Code of Good Practices to alleviate the rise in interest rates (which allows debtors with problems to pay their loans to obtain an extension of the repayment term of their loan, or a novation from variable to fixed rate, among other issues), will end.

For more details on the measures, their potential beneficiaries, and the necessary requirements,(HERE) we link to an article from our blog that was published at the time, where all these issues are explained.

5.- Variable remuneration of the directors. It is necessary to establish in the clause of the bylaws the parameters or reference indicators that will be taken as a reference to determine it.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 21, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of elevation to public deed of corporate resolutions, among which is the statutory clause of remuneration of the administrators. This clause provides for the possibility of receiving "a variable remuneration, according to indicators or general reference parameters", without specifying what these are.

The Mercantile Registrar denied the registration for this reason (under art. 217 LSC), a criterion that was confirmed by the DG, ruling that when the possibility of receiving variable remuneration is established, it is necessary toexpressly detailthe indicators or parameters that will make it possible to specify it, although they must be interpreted in a flexible manner.

6.- The modification of the constitutive title of the horizontal property requires the consent of the owners who were owners when the agreement was adopted and, also, of those who are owners when the document is presented for registration in the Property Register.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of September 2, 2024 (BOE of November 6, 2024), in which the General Directorate reminds us that, in the framework of a horizontal property, to achieve the modification of the constitutive title, the consent of the owners who were owners on the date of adoption of the agreement and, likewise, of those who are registered owners on the date on which said document must access the Land Registry is required.

7.- Remuneration of the board of directors with executive functions. Competence of the general meeting to determine it.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 21, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of amendment of the bylaws of a corporation, in which the article of its bylaws related to the remuneration of the board of directors is modified. In the new wording, it is determined that, in the case of the members of theboard of directors with executive functions, their remuneration will be determined by the General Meeting on the basis of oneor more of the concepts detailed in the statutory provision (a fixed allowance, per diems, variable remuneration, etc.).

The Mercantile Registrar refused the registration on the grounds that the provision infringes art. 217 LSC, since it does not determine the system of remuneration, but leaves the choice of one or more of those provided for in the bylaws to the discretion of the general meeting.

Upon filing the corresponding Appeal, the Directorate General revoked the qualification note, ruling that the clause in question does not leave the choice of one or more of those provided for in the bylaws for the directors to the discretion of the general meeting,Rather, it is limited to establishing only with respect to the remuneration foreseen for members of the board of directors to whom executive functions have been attributed, that the remuneration items to be received annually by these directors will be determined by the general meeting and will consist of one or several of those specified, which is accepted by the Board of Directors in accordance with the provisions of articles 217 and 249 of the Spanish Corporations Act (LSC).

8.- Purchase option and notifications between the optionor and the grantor. Careful attention to how the notifications are made by notary.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 22, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of cancellation ofa purchase option. The case is based on a registered purchase option deed, in which the purchaser has a period oftwo months to exercise the option, to be counted from the moment the grantor performs a series of actions (specifically, to pay some taxes and cancel some fiscal affections that encumbered the property).

The grantor complies with the conditions, and proceeds to notify the applicant by notary (by means of an official notice), but upon notification, the Notary, who goes to the registered office of the applicant company, finds an employee who "acknowledges that she is an employee of the requested company" and who also states that "she is not authorized to collect any request". In view of this refusal, the Notary Public considers the request to have been made, at which point the grantor considers that the 2-month period granted has begun to run.

Once this term has finally elapsed, the granting party grants this deed of cancellation of the purchase option that is now sought to be registered, which is rejected by the Registrar, since she considers that in order for this to be possible, the consent of the option holder is required and because, likewise, the notification of the act of summons has been made incorrectly, since in view of the refusal of the employee to collect the document, it would have been appropriate to send it byregistered mailwith acknowledgement of receipt, as established in art. 202 of the Commercial Registry.

The DG confirms the criterion of the Registrar, so that, in these cases, it will be necessary to take extreme precautions and, in the event of a refusal to collect the writ, to ensure the notification by sending it by registered mail with acknowledgment of receipt.

Liquidation of a corporation and appointment of an auditor. The consent of the receiver is not required in order to register the liquidation of the company.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 22, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deed of liquidation of a corporation. In this case, a minority shareholder had requested the appointment of an auditorto supervise the liquidation operations, which was duly registered in the Mercantile Registry.

Once the deed has been presented for registration, the Mercantile Registrar considers that it is necessary to include in said deed the intervention and consent of the comptroller to the liquidation operations, which is rejected by the General Directorate in the resolution of the appeal filed, since it considers that its function is limited to controlling that the actions of the liquidators are carried out within the legal and statutory rules relating to the liquidation process, making the shareholders aware of any actions of the liquidators that are contrary to the Law or the Articles of Association, so that in addition to the liabilities that the liquidators may have incurred, their removal may be requested under the terms of Article 380 of the Capital Companies Act. Thus, the liquidators can act without obtaining the approval of the auditors, since their function is to supervise, but notto approve the actions of the liquidators.

10.- The pledge on a photovoltaic installation is registrable in the Registry of Movable Goods.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of October 22, 2024 (BOE of November 21, 2024), in which the General Directorate resolves a case related to a deedof pledge of a photovoltaic installation, which is initially rejected by the Registrar, considering that, in this case, it could only be registered as a chattel mortgage.

Upon appeal, the DG revoked the qualification note, considering that this photovoltaic installation is nothing more than apledgeable movable property, so that it is possible to register this pledge on a photovoltaic energy production installation duly registered in the corresponding Administrative Registry, in the form of anon-possessory pledge provided for in art. 682 LEC.

Interesting resolution applicable to financing operations of this type of assets or infrastructure.

11.- Termination of the managing director of a municipal company. Public deed is required

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 resolves a case regarding the dismissal of a managing director of a municipal company, which seeks access to the Commercial Registry on the basis of a certification of board agreements issued by the Secretary of the City Council, with the approval of the Mayor.

The Mercantile Registrar denied the registration on considering that this act requires a public deed for its registration (arts. 94 and 95 RRM), this criterion being confirmed by the General Directorate in the appeal that is being resolved.

12.- Beware of revoked NIFs when registering in the Land Registry.

Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of September 18, 2024 (BOE of November 6, 2024), in which the General Directorate resolves a case related to a deed of sale, in which the selling company, when formalizing the deed of sale, has the NIF in force, but when it presents the document for registration in the Registry, this has been revoked.

The DG resolves that, indeed, in order to be able to register the transfer in the Land Registry, it is necessary that the NIF of the company is in force not only when the deed is formalized, but also when the access of the document to the registry is formalized.