Francisco Lorenzo Martínez
With the entry into force from April 2, 2020, the Government has expanded different measures in light of the situation caused by Covid-19. Among them, the measures approved in the mortgage moratorium stand out.
With the new norm, its scope is extended to the self-employed, companies and professionals of its properties affected by economic activity (premises, offices, etc.), as well as being extended to small landlord-lessors who suffer defaults.
In the previous Royal Decree-Law 8/2020, 17th of March, this measure was regulated for the first time and the conditions were established to benefit from the mortgage moratorium. In art. 9 of the regulatory norm, a series of assumptions of economic vulnerability are established to access the measure, with no express mention being made that each and every one of these assumptions must be complied with to prove the situation of economic vulnerability and thus be able to benefit from the mortgage moratorium
With the publication of Royal Decree-Law 11/2020, 1st of April, in force since April 2, 2020, it has been expressly introduced in its art. 16 "a clarification" as we can read below:
“The assumptions of economic vulnerability as a consequence of the health emergency caused by COVID-19 for the purposes of this Royal Decree-Law and Royal Decree-Law 8/2020, of March 17, are defined by joint compliance with the following conditions”
And for its part, the second transitional provision of Royal Decree 11/2020, establishes:
“Three. Article 8 is worded as follows: «Article 8. Scope of the mortgage debt moratorium. 1. The measures provided for in this royal decree-law for the suspension of the obligations derived from the mortgage guarantee loan contracts in force on the date of entry into force of this royal decree-law whose purpose was the acquisition of habitual residence or real estate affected by the economic activity carried out by businessmen and professionals will be applied to said contracts when all the requirements established in article 16 of royal decree law 11/2020, of the 31st of March, concur in the debtor, to understand that it is within the assumptions of economic vulnerability”
As can be seen, the new Royal Decree-Law has corrected what was expressly not included in the previous regulation published on March 18, so the debate is open.
Indeed, the Royal Decree-Law, 17th of March, establishes for this purpose the following:
“Article 9. Definition of the situation of economic vulnerability.
1. The assumptions of economic vulnerability as a consequence of the health emergency caused by COVID-19 are defined with the following tenor:
a) That the mortgage debtor becomes unemployed or, in case of being an entrepreneur or professional, suffers a substantial loss of income or a substantial drop in sales.
b) That the total income of the members of the family unit does not exceed, in the month prior to the request for the moratorium:
i. In general,…
c) That the mortgage payment, plus basic expenses and supplies, is greater than or equal to 35 percent of the net income received by all the members of the family unit.
d) That, as a consequence of the health emergency, the family unit has suffered a significant alteration in its economic circumstances in terms of effort to access the home, in the terms defined in the following point.”
The Judges and Courts will be in charge of interpreting said omission in light of the principle of non-retroactivity of the norms enshrined in our Constitution in its art. 9.3, since those affected who have requested the moratorium on their banking entities under Royal Decree 8/2020, March 17, should not bear the restriction of their rights that Royal Decree-Law 11/2020, 1st of April, by demanding compliance with all the assumptions as a whole to prove the borrower's financial vulnerability.