Distribution of mortgage expenses and modification of the ITPAJD

On January 23, 2019, the 1st Chamber of the Supreme Court, sitting in plenary session, delivered five judgments (numbers 44, 46, 47, 48 and 49/2019), establishing doctrine on some issues related to abusive clauses in contracts with consumers on the that had not yet been pronounced or had done so in a contradictory way.

Cristina García Salazar

Date 28/05/2019

 Thus, since then, the doctrine of said Chamber is as follows:

- Notarial fee:

• Matrix: The notarial intervention interests both parties, so the costs of formalising the mortgage loan must be distributed by half.
• Modification: Proceed the same solution proceeds, while both parties are interested in the modification or novation of the mortgage loan.
• Cancellation: The interested party in the release of the lien is the borrower, for which this expense corresponds.
• Copies: Should be paid by those who request it, while the request determines their interest.

- Registration fee:

• The mortgage guarantee is registered in favour of the lender, so it is the responsibility of the bank to assume the expenses resulting from the mortgage registration.
• On the other hand, the registration of the deed of cancellation interests the borrower, who must assume said expense.

- Management: Both parties must assume this expense at 50%

- Transfer tax and documented legal acts: The Chamber reiterates that, for operations prior to Royal Decree-law 17/2018 (which entered into force on November 10, 2018), the taxpayer of this tax is the borrower, as already agreed in judgements 147 and 148/2018, of March 15, whose doctrine corresponds to that of the judgements of the plenary of the Third Chamber of this Supreme Court 1669/2018, 1670/2018 and 1671/2018, of 27 November, which maintain the previous jurisprudence of that same Third Chamber.

And it is that said Royal Decree-law 17/2018, of November 8, modified -among other things-, article 29 of the Revised Text of the Tax Law on Transfer of Property and Documented Legal Acts, so that, when it is of loan deeds with mortgage guarantee, it will be considered a taxpayer to the lender, that is, to the bank. But this, as the First Chamber says, is only applicable to operations registered from November 10, 2018 onwards, since Royal Decree-Law 17/2018 does not contain any retroactive regulation.

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