After the Supreme Court judgment dated December 23, 2015, which declared the nullity of the mortgage clause stating that the costs of mortgage establishment will be borne by the borrower (consumer), there have been many judgments from lower courts and Provincial Courts that have been modulating and interpreting the Supreme Court's jurisprudence, without a uniform criterion.
Thus, there are different resolutions depending on the concept of the claimed expense, whether it be valuation, management, Notary and Property Registry or Taxes/AJD.
- Regarding AJD taxes, there are few Courts granting consumers the refund of expenses generated by this tax, as even though it could be considered an abusive clause, its nullity implies that, failing that, what is established by the law regulating this tax should be applied. In this sense, Article 68 of the Regulation of the Tax on Patrimonial Transmissions and Documented Legal Acts (Royal Decree 828/1995, of May 29, establishes that when it comes to deeds of constitution of a loan with mortgage guarantee, the taxpayer of this tax will be considered the borrower (consumer). That is, if the Judge declares the inclusion of the expense attribution clause as not included, the law imposes on the consumer, and not on the financial institution, the obligation to pay the tax. Despite the above, in the province of Girona, we find that the Provincial Court fully accepts the Supreme Court's criterion, agreeing to payment of taxes by the financial institution (SAP GI 188/2016).
- Regarding notary fees, most Courts are deciding that the payment of the Notary's fees be settled equitably to both parties, as both are interested in the elevation to a public deed of the contract. In these cases, the courts condemn the bank to reimburse the client half of the notary fees.
- Regarding property registry fees, most judicial resolutions consider that it is the banking entities that must bear these costs because the rights of the registrar will be paid by those in whose favor the right is inscribed or immediately noted.
- As for management expenses, the Judges mostly understand that these expenses correspond by law to the entrepreneur, and that banks do not provide evidence to consumers, clearly and separately, of their right to jointly designate the management company or reject the hiring of this service. Therefore, it is up to the banks to fully pay the management fees because their hiring was chosen by them and imposed on consumers.
- Regarding valuation expenses, there are few courts that rule in favor of the consumer. Those favorable to the latter maintain that it is an expense of the financial institution carried out to verify the value of the property that the client grants as collateral for the loan and oblige banks to reimburse clients for valuation expenses arguing that financial institutions unilaterally decided the company that would carry out the necessary valuation to be able to resort to a mortgage execution procedure in the future, and yet, they charged these expenses to consumers.
From all of the above, it is evident the need for a second Supreme Court judgment that establishes jurisprudence and brings order to the confusion in the lower courts.
