Practical Legal Notes - October 2024
1.- Rectification of the description of a communal parking space. The consent of all the co-owners of the garage is required.
Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of September 27, 2024 (BOGC of October 7, 2024), in which the DG resolves a case concerning the attempt of the owner of a parking space inserted in a community garage (i.e., subject to a horizontal property regime), to unilaterally modify the description of his parking space, in order to attribute to himself the exclusive use of a certain annex or space of the community parking lot, basing his claim on an alleged transcription error in the deeds of incorporation of the horizontal property regime and sale and purchase.
The Registrar, as it could not be otherwise (as it finally happens with the resolution of the DG), determines that this is not possible, since in order to rectify the registry entry and recognize the right of a specific square to the private occupation of a common space, this implies in essence an act of disposition (to attribute the exclusive use) within a community, for which the unanimous consent of the rest of the co-owners of said community will be required, in accordance with what is expressly established in article 552-7.6 of the CCC.
2.- Registration of the attribution of the use of the family home determined in the divorce sentence in favor of the children and the ex-spouse to whom the custody is attributed. Temporal concretion of the right is required
Attached (HERE) Resolution of the Direcció General de Dret, Entitats Jurídiques i Mediació of October 2, 2024 (BOGC of October 11, 2024), in which the DG resolves a case related to the attempt to register a court order ordering the registration of the use of the family home (owned 50% by the two ex-spouses), attributed in a divorce sentence, to the common minor children of the marriage, and to the ex-spouse to whom their guardianship corresponds.
In the resolution in question, the registration of this right is ordered, but without specifying the temporary duration of the same, which is initially rejected by the Land Registrar, and confirmed by the DG, in the sense that, in accordance with art. 233-20 CCCat, the attribution of the use of the dwelling must be made on a temporary basis, so that, in the resolution that is agreed, the temporary duration of said attribution must be clearly specified, so that the same can be correctly registered in the Land Registry.
3.- Publication of the new report of the Bank of Spain's Claims Service for the year 2023
On October 9, 2009, it has been published (HERE) the Report of the Complaints Service of the Bank of Spain, corresponding to the fiscal year 2023, where the banking supervisor compiles all the complaints filed by bank customers against their institutions, as well as the resolution criteria applied by the supervisor in the most conflictive matters.very interesting document to resolve doubts of customers about the origin of commissions, interest rates, penalties, etc. in their relations with their bank.
Interesting novelties such as in the matter of zero balance certificates when cancelling the mortgage (where it is not required to provide a simple note), in the matter of maintenance fees when the inheritance is lying (where an unjustified increase of fees is not acceptable) or on the necessary transparency in relation to the amortization system of mortgage loans.
4.- Approval of the draft bill to amend the Civil Code of Catalonia regarding support for the exercise of the legal capacity of persons.
Attached (HERE) the text approved by the Catalan Government to process the modification of the autonomous Civil Code in matters of support for the exercise of the legal capacity of persons.
The text, based on the New York Convention, is firmly committed to the autonomy of persons with disabilities, moving from the old model of substitution of will (incapacitation), to one based on accompaniment, through informal or formal institutions, such as assistance or preventive supports (powers of attorney in anticipation), that is, areas where Notaries can participate very actively in the protection of persons with disabilities.
In any case, it will be necessary to wait for the corresponding parliamentary procedure for the entry into force of the text.
5.- Mortgaging a property and empowering the creditor to sell the property in the event of nonpayment (and cancel the debt with the price obtained) violates the prohibition of the commissory agreement.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 22, 2024 (BOE of October 9, 2024), in which the owners of a property formalize a mortgage loan on their property, for an amount of more than 500,000 euros (with a maturity of 6 months) and, at the same time, grant the creditor a power of attorney to sell the property, collect the price (and with the same to amortize the debt in case of non-payment) and cancel the guarantees. After some time, finally the attorney-in-fact makes use of the power of attorney and sells the property before a Notary, in order to collect the unpaid outstanding debt.
Once this deed of sale was presented for registration, it was negatively qualified by the Registrar, alleging in essence that this procedure violates the general prohibition of the commissory agreement (arts. 1,859 and 1,884 Cc), a criterion that is confirmed by the General Directorate in its resolution.
6.- Beware of reservations of powers made in the deed of incorporation of a horizontal property regime.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 23, 2024 (BOE of October 9, 2024), in which an interesting case is analyzed, in which the owner (different from the developer, since the latter had already sold it) of a premises subject to the horizontal property regime, unilaterally segregates a part of it to form an independent property, unilaterally segregates a part of the same to form an independent property, relying for this purpose on a clause of the bylaws of the parent property where it is stated that "the promoter of the horizontal division reserves the right to divide the business premises on the first floor in the manner it deems appropriate".
Once this deed was presented for registration, the Registrar refused to register it, since she understood that the clause in the bylaws only enables the developer to carry out this unilateral segregation (i.e., without the agreement of the corresponding meeting), and not subsequent owners of the property, this criterion being confirmed by the General Directorate, in the sense that, since it is an exception to the general rule provided for in the legislation regulating horizontal property, as such, it must be interpreted restrictively.
7.- To take extreme precautions in the LCI certificate in the mortgage loan and all the details required by law (especially if more parties are involved, such as guarantors).
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 23, 2024 (BOE of October 9, 2024), which analyzes a case of a mortgage loan (with guarantor) that is presented for registration, where the Notary, when referring to the previous LCI act and its content and result, no express mention is made of the fact that the borrower and guarantor parties have received the advice provided for in Article 15 of Law 5/2019 of March 15 and that, likewise, the guarantor party has received the documentation established in the LCCI sufficiently in advance.
The Registrar denies the registration for this reason and the General Directorate confirms the defect, so that, as a conclusion, we must be extremely careful when indicating the LCI act in all mortgage loans, with all the requirements demanded by the LCI, especially in those cases in which third parties intervene in the operation beyond the mortgagors (as in this case, guarantors).
8.- A natural person who acquires a residential property with bank financing (mortgage loan) with the purpose of leasing the same must be considered a consumer.
Attached (HERE) Judgment of the Court of Justice of the European Union of October 24, 2024, in which the Court, in response to a preliminary question, determines that, under the Union legislation applicable to the case (which is reflected in each Member State), the natural person who acquires a residential property, with bank financing (mortgage loan), for the purpose of leasing the same, for valuable consideration, must have the status of consumer, provided that it is not a professional activity of that person.
As a result of such consumer status, it is understood that the consumer protection rules in the field of mortgage loan contracts (i.e., LCI in the Spanish case) will be applicable. To be taken into account when considering a transaction of this nature.
9.- Legitimate interest in obtaining the purchase price in a registry certification.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 29, 2024 (BOE of October 10, 2024), in which the General Directorate analyzes an interesting case in which the Property Registrar refuses the issuance of a registry certification detailing the purchase price paid by the current registrant.
In the present case, a person requests the issuance of said certification, detailing the purchase price stated in the registry inscription, alleging that he has signed a deposit contract with the current owner and that he intends to file legal actions related to the same (injury in half of the fair price, of art. 621-45 CCCat and unfair advantage of art. 621-46 CCCat), for which, he requires to know said purchase price. The applicant provides as proof of her legitimate interest a copy of said earnest money contract and a power of attorney for lawsuits for the purpose of filing said legal action.
The General Directorate, revoking the Registrar's refusal, considers that the legitimate interest in the case is sufficiently accredited in order to obtain details of the sale price that is required to be known, since this is a key element to determine the viability of the legal action that is sought to be filed.
10.- Purchase of real estate by married foreigners. In the purchase, the important thing is to determine the legal or conventional nature of the matrimonial economic regime.
Attached (HERE) Resolution of the General Directorate of Legal Security and Public Faith of July 29, 2024 (BOE of October 10, 2024), in which the General Directorate reminds us that, when a property is purchased by foreign married persons, the important thing is not to determine the specific matrimonial property regime, but its legal or conventional character, without the Registrar being able to demand more specificity in this respect (that is, the simple classic expression of "married according to the legal matrimonial property regime of their nationality" is valid).
However, of course, it will be at the time of the sale (voluntary or forced) when the specific applicable foreign law will have to be taken into account in order to assess the conditions of such disposal.
