“Abusive” clause: Expenses in Loans with Mortgage Guarantee. 

We are receiving many queries in our Firm of Economists and Lawyers in the town centre of Málaga and Nerja in relation to the claim of expenses for the registration of mortgages, since the expenses clause included in loan contracts with mortgage security has been judged abusive in the last much-talked-about verdicts.

This clause obliges the borrowers who are granted the mortgage to pay the expenses of Notary, Registration and Stamp Duty Tax on Documented Legal Acts.

Requests to NULLIFY the expenses clause:

Our Firm has already filed several claims against different entities on behalf of our clients. We especially filed lawsuits requesting to nullify the clause that requires the borrower to pay the costs of the registration of a mortgage and the reimbursement of expenses.

Actually, a considerable volume of verdicts in Spain have condemned the banks to force people to pay  for:

  • expenses created when issuing a mortgage,
  • plus legal interest accrued from the date of payment.

It is interesting to note that the Courts and Tribunals are not only

  • declaring that this type of clause is abusive – and therefore null –
  • but that they are also forcing the refund, to the buyer, of the costs that he bore through this clause.

Judgment of the Court of Justice of the European Union December 21st 2016:

Following this judgment, clauses of expenditure in deeds of loans secured by a mortgage requiring the buyer to assume them will be declared null.

This, added to the Spanish Supreme Court’s existing judgment, clearly gives rise to claims for costs by the affected clients, and for the bank to pay back all that its customers paid for the following concepts:

• Notary,
• Registry,
• Management,
• what the customer paid to the Treasury, and even very likely
• home appraisal costs.

Abusive clauses:

It is important to know that in 2013, the Court of Justice of the European Union ruled

– how a judge should analyse the constituent elements of an “abusive clause” (Aziz case).

Since then, the judgments of Spanish Courts and Tribunals have changed the jurisprudential trend. They have also been notoriously relating to this question and for different reasons:

claims of ground clauses, of expenses for the writing of loans secured by a mortgage, etc…

Supreme Court judgment of December 23rd 2015

In this context, home buyers must note that the Supreme Court judgment of  December 23rd 2015 establishes that:

the clauses included in mortgage loans that pass on the expected expenses to consumers, will be added to the black list of abusive clauses that the Law enumerates.

That will oblige both the judges and the courts, subject to the rule of law, to declare abusive those clauses that pass on to consumers:

  • the expenses of Notary and Registry,
  • the Taxes on Documented Legal Acts,
  • and of all the pre-procedural and procedural expenses.

For those same reasons, the clause imposing the buyer to assume the costs of appraisal will also be considered abusive; being a processing expense, by its very nature, it corresponds to the lender, since the prior expert appraisal is a requirement for mortgage loan. So, only those expenses that by law expressly correspond to the buyer must be born by him.

Therefore, we encourage our readers and other customers affected by expenses of the grant of a mortgage to contact  us to consider this issue, clarify any doubts and help them make the corresponding claim.