We are receiving many queries in our Firm of Economists and Lawyers in the town center of Málaga and Nerja , in relation to the claim of expenses for the grant of mortgages, since expenses clauses included in loan contracts with mortgage security have been adjudged abusive in last much-talked-about verdicts. This clause obliges the borrowers, that is, the persons who are granted the mortgage, to pay the expenses of Notary, Registration and Stamp Duty Tax on Documented Legal Acts.
From this Firm, we have already filed several claims against different entities on behalf of our clients, as well as other lawsuits have been filed requesting the nullity of the clause that requires the borrower to pay the costs of the grant of a mortgage and the reimbursement of expenses.
There is already a considerable volume of judgments in Spain that have condemned the banks to reintegrate the person concerned the amount corresponding to expenses paid by the grant of the 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 would have satisfied in the application of this clause.
It is incontestable that, following the judgment of the Court of Justice of the European Union of 21 December 2016, will be declared null clauses of expenditure in deeds of loans secured by a mortgage requiring the buyer to assume them.
This, added to the Spanish Supreme Court’s existing judgment, clearly gives rise to claims for costs by the affected, and for the bank to pay back all that its customers paid for the following concepts:
• that the bank must return what the customer paid to the Treasury, and
• Even very likely home appraisal costs.
It is important to know that since the Court of Justice of the European Union ruled in 2013 how a judge should analyze the constituent elements of an “abusive clause” (Aziz case), the judgments of Spanish Courts and Tribunals have changed the jurisprudential trend and been very notorious relating to this question and for different reasons: claims of ground clauses, of expenses of writing of loans secured by a mortgage, etc.
In this context, it is noteworthy that the Supreme Court judgment of 23 December 2015 establishes that the clauses included in mortgage loans that pass on to consumers (buyers of homes in this case) the expenses expected, will make up the black list of abusive clauses that enumerates the Law. 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 that imposes the buyer to assume the costs of appraisal will also have to be considered abusive, being a processing expense that, by its very nature, corresponds to the lender, since the prior expert appraisal is a requirement to be able to grant a mortgage loan, and only those expenses that by law expressly correspond to the buyer may be charged to him.
Therefore, we encourage our readers and other customers affected by expenses of the grant of a mortgage to contact us to consult this issue and clarify any doubts and help them make the corresponding claim.