Article written on December 11, 2024, by Mr. Jesús Picossi Ávila, practicing lawyer No. 8254 ICAMALAGA
In our professional office, we can obtain for you the extrajudicial or judicial declaration of the nullity of the mortgage expenses of your mortgage loan, obtaining the refund of the amount of said expenses paid unduly, which can amount to thousands of euros, together with the legal interest accrued from the date of the undue payment of said monetary amount. We will now explain this matter.
What are mortgage expenses?
- Mortgage expenses are the expenses derived from the granting of a mortgage loan, these being the following:
- Notary fees: This is the expense of professional fees of the Notary, in which the corresponding mortgage loan deed is granted.
- Property registration fee: This is the expense of professional fees of the Property Registry, in which the corresponding mortgage loan deed is registered.
- Appraisal fee: This is the cost of professional fees paid to an Appraisal company, which values the property to be acquired, in order to be able to evaluate the maximum amount of the loan to be granted. As well as to establish the auction price of the same, in case of non-payment of the mortgage, and the bank having to start the foreclosure process.
- Agency fee: This is the cost of professional fees of the Agency or Consultancy, involved in the total administrative processing of the mortgage loan deed signed, from the granting of the same, through the liquidation of taxes, and up to the registration of the same in the competent Property Registry.
What is the nullity of mortgage expenses?
The nullity of mortgage expenses consists of leaving without effect the financial clause established in the mortgage loan deed, which imposes said mortgage expenses on the borrower. And this, since said clause is not valid, because it does not pass the transparency and/or abusiveness control, established by the current legislation applicable to consumer matters.
What is the deadline for me to claim mortgage expenses?
The judicial action for the annulment of mortgage expenses is imprescriptible, there is no deadline for the exercise of said legal action. Which means that said annulment can always be claimed, even if the mortgage loan has been paid in full a long time ago.
The Supreme Court, in a ruling of June 14, 2024, has clarified that the limitation period for the accessory action for the return of the amount derived from the nullity action, begins to count from the judicial declaration of the nullity of the corresponding clause. Therefore, in this way, the ban is opened to the filing of the corresponding judicial claim, in relation to any mortgage loan, no matter how old it is.
When are mortgage expenses void?
The courts will have to assess whether or not the said clause, which imposes mortgage expenses on the bank client, complies with the corresponding requirements of transparency and non-abusiveness, in order to declare it null and void. Currently, there is practically unanimous jurisprudential doctrine, which states that the mortgage expenses clause does not comply with said requirements of transparency and non-abusiveness, consequently declaring the nullity of said expenses.
Mortgage expenses must be transparent, in two aspects:
As regards their inclusion in the contract (formal transparency), that is, that it is accessible, legible, and does not appear hidden within a cumbersome and incomprehensible financial information. And as for the information given to the borrower (material transparency), that is to say that the client knows which are the specific services, which pay the corresponding commission, knowing the economic consequences of the application of the same, complying with the financial entity with the sectorial and current regulations established in this regard, such as the Ministerial Order of May 5, 1994 and the subsequent order EHA/2899/2011 of October 28.
In addition, the mortgage expenses must not be abusive:
That is to say, since it constitutes a general condition of the contract, which means that it has not been negotiated and has been imposed on the consumer, said clause must not suppose an imbalance in the rights and obligations of the parties, it cannot impose disproportionate and illegal obligations and burdens on the borrower.
What consequences does the nullity of the mortgage expenses have?
The consequences of the nullity of mortgage expenses, according to our Supreme Court, are the following:
Notary fees: Refund of 50% paid.
Property registration fees: Refund of 100% paid.
Appraisal fees: Refund of 100% paid.
Agency fees: Refund of 100% paid.
In addition to the return of the amounts established above, in accordance with article 1,303 of the Civil Code, the legal interest accrued on said amounts must be returned, from the moment of the corresponding undue payment, and until the moment of payment thereof.
Judgments declaring the nullity of mortgage expenses
There are several judgments declaring the nullity of mortgage expenses, the most important being in chronological order:
- Supreme Court judgment 705/2015, of December 23, 2015
Supreme Court judgment 46/2019, of January 23, 2019
Supreme Court judgment 35/2021 of January 27, 2021
Judgments declaring the nullity of mortgage expenses won by this professional office
- Judgment of Section 6 of the Provincial Court of Malaga 66/2021, of January 21, 2021
- Judgment of Section 6 of the Provincial Court of Malaga 464/2023, of April 12, 2023
What documentation is necessary to claim the return of mortgage expenses?
The documentation required to claim the refund of mortgage expenses would be:
- The mortgage loan deed.
The invoices and/or receipts of bank or cash payments, derived from the granting of the mortgage loan, from the notary, property registry, appraisal and agency.
How to claim the nullity of the opening commission of a mortgage loan?
In our professional office, we study the viability of your case, free of charge and without obligation. And if the claim is feasible, upon request of the client, we will request the necessary documentation to be able to claim, charging when the client collects.
