Practical Legal Notes - September 2024
1.- Availability of the Cadastral Certificate of Reference Value in SIGNO
As part of the collaboration between the General Council of Notaries and the General Directorate of Cadastre, the cadastral certificate of reference value determined by the General Directorate of Cadastre has been made available on the SIGNO platform. When requesting the certificates of a property through the Real Estate Processing Service in SIGNO, it will be possible to access both the new cadastral certificate of reference value and the descriptive and graphic cadastral certification, which was previously available.
2.- Notification and delivery by registered mail. They must continue to be sent only through Correos (the Spanish Post Office).
Pursuant to Article 202 of the Notarial Regulations (regarding notification certificates), "If the notary is unable to deliver the certificate, he/she must send the same by certified mail with acknowledgement of receiptas established in Royal Decree 1829/1999of December 3, 1999, or by any other procedure that allows a reliable record of the delivery". In said Royal Decree, until now it was established that registered mail services had to be provided through the universal postal service (that is, only through the public company "Correos", and not to other private operators).
Recently, Royal Decree 437/2024 has come into force, which repeals Royal Decree 1829/1999, creating a legal gap that needs to be filled, since the new regulation does not expressly establish anything in this regard.
In view of this, and by application of art. 22.4 of Law 43/2010, it is considered that in this type of notification acts, the remission of the same should continue to be made by registered mail with acknowledgement of receipt through the public company of Correos, since it is the only one that reliably proves the fact of its realization, delivery or refusal.
3.- Sale of real estate in Catalonia and the buyer's need for financing. Be careful with the Catalan regulation of earnest money.
Attached (HERE) Judgment of the Superior Court of Justice of Catalonia 5861/2024, of April 17, where a case is resolved regarding the signing of a deposit contract for the sale of a house of 582,000 euros, where the future buyer delivers to the seller the amount of 40,000 euros, as a penitential deposit, agreeing however the possibility of withdrawal of the buyer under art. 621-49 CCCat.
In this regard, it should be remembered that art. 621-49 CCCat (provision for financing by a third party), determines that "if the purchase contract provides for the financing of all or part of the price by a credit institution, the buyer, unless otherwise agreed, may withdraw from the contract if he justifies in writing, within the agreed period, the refusal of the designated institution to grant the financing or to accept the subrogation of the buyer in the mortgage encumbering the property, unless the refusal is due to the negligence of the buyer".
In the analyzed case, the buyer does not obtain financing from two different banks, and in view of this, requests the withdrawal agreed in the earnest money contract, which is not accepted by the seller, alleging that the refusal of such financing is due to the negligence of the buyer in having requested the financing of the property that is the object of this litigation lacking the necessary repayment capacity.
The Supreme Court, in view of the circumstances of the case, upholds the buyer who has withdrawn from the contract, resolving two interesting issues:
- That for the application of art. 621-49 CCCat it is not necessary to specifically designate a financial entity that has to grant the financing (one or several of the buyer's choice can be used, without the need to designate it previously so that the cause of withdrawal can be applied in the face of the refusal of the financing).
- That the withdrawal will not be applicable to the buyer who has a negligent attitude (that is, no possibility, from the beginning, of obtaining the mortgage financing), but it will be applicable to the buyer who, initially, being able to afford the financing, during the process of studying the same suffers an unforeseen decrease in income that leads to the refusal to grant said financing.
4.- Real right of use for life. Things have to be done well, and before a Notary Public.
Attached (HERE) Judgment of the Superior Court of Justice of Catalonia 2821/2024, of January 30, where a case is resolved regarding a real right of lifetime use, which the plaintiff seeks to have recognized in his favor.
The case is based on the assumption that some parents propose to their daughter (who is married and has two daughters) to go to live with them, to a house owned by those parents, after carrying out the relevant works (by means of which, in the same registered property, two different houses are actually built). The daughter accepts the proposal and they move to live in that house, but after a few years and a marital separation, the parents decide that they do not want to maintain this situation any longer, and sue the daughter to leave the house, considering that she is occupying it in precarious conditions. In view of this situation, the daughter sues the parents, considering that at the time, when her parents made this proposal, they actually granted her a right of use in her favor over her parents' home, of a real and lifelong nature, which she claims to be recognized by the courts, and which was indeed recognized in the first and second instance.
However, finally, the SCJ, in the Judgment analyzed, determines that the right of use of a house by the parents to their daughter, free of charge and for life, according to the legal provision, was in legal terms a donation of real estate that needed to be recorded in a public deed, an essential formal requirement for the effectiveness of the legal business (ats. 531-7, 531-12 and 562-1). Therefore, since this real right of use has not been constituted in a public deed, it is not appropriate to recognize it, making it clear once again how important it is to go to the Notary and to formalize correctly the legal acts and businesses that are intended, in order to achieve their validity.
5.- New Compendium of Good Banking Practice Criteria
Attached (HERE) link to a new article of the blog of the Notary's Office, where the new Compendium of Good Banking Practices criteria is analyzed, that is, a document prepared by the banking supervisor, where the Bank of Spain sets the interpretative criteria, methodologies or procedures that have been consolidated as standards in the sector or are reasonably required for responsible, diligent and respectful management with the banking clientele.
This document determines the way in which common disputes between banks and their customers should be resolved, in a multitude of matters, such as commissions, loans, wills, etc. It also replaces and unifies the criteria previously contained in the Annual Report of the Complaints Service of the Bank of Spain. This document is very useful for customers to find criteria with which to resolve possible conflicts or discrepancies with their bank.
6.- Disinheritance of children due to absence of relationship with the deceased. It is only possible if the absence of relationship is exclusively attributable to the children.
Attached (HERE) interesting Judgment of the Provincial Court of Girona 688/2024, of April 24, where a case is resolved regarding the validity of a disinheritance clause contained in a will, under the protection of art. 451-17, letter e, CCCat, where a man disinherits his two daughters, for an alleged manifest and continuous absence of family relationship between him and the legitimacies, for a cause solely attributable to the legitimacies.
In the litigation, however, it is accredited that the absence of family relationship is due to the conduct of the father (Mr. who separates from the mother when the daughters are very young, abandons the family home and practically does not maintain relations with the minor daughters), so that the cause of disinheritance of the daughters of art. 451-17 CCCat is not applicable, since it requires that the cause is only attributable to the legitimated daughters.
Thus, it is recalled that in order for this cause of disinheritance to apply, the origin of the absence of relationship must be attributable exclusively to the legitimacies, and not to the deceased in question.
Reference value and taxpayer's appeal. It is possible to appeal and not have to pay the liquidation in certain cases.
Attached (HERE) interesting Sentence of the High Court of Justice of the Valencian Community, where an interesting case is solved that can be applicable to other cases, in relation to the reference value.
The starting point is the sale of a property for €65,000 (a transaction subject to ITP), in which the regional tax authorities, after initiating a limited verification, set the reference value of the property at €130,884.53, and proceeded to issue a settlement proposal with this amount as the taxable base. The taxpayer, after an initial rejection in administrative proceedings, appealed the liquidation in economic-administrative proceedings, requesting the suspension of the execution of the contested liquidation act, reserving the right to request the contradictory expert appraisal (TPC).
The TEARCV upheld the suspension request, understanding that it was a right of the claimant after a verification of the declared value by means of art. 57 LGT, a criterion that is confirmed by the TSJ, expressly determining that in these cases, after the verification of the declared value, the taxpayer is entitled to the TPC, which implies by legal mandate the suspension of the execution of the liquidation, either by requesting the TPC or by reserving the right to promote it.
