How to claim the expenses of the mortgage and receive the return of the money that corresponds
The Supreme Court decided on October 19 that it is the bank and not the client who must pay the tax on legal acts documented in the signature of a mortgage , thus correcting its previous doctrine .
The consumer associations, upon hearing the news, celebrated and encouraged the clients that might be affected to claim . But shortly after the Supreme Paralyzed the effects of the sentence and has postponed on Monday the final decision on it to the House of the next November 5 .
However, it is worth asking what are the keys that lie behind this decision of the high court:
What is the mortgage tax?
It is the Tax on Documented Legal Acts of mortgages. It is the most important cost when we talk about a mortgage and it is not the same in all of Spain. Each autonomous community has its own, which normally varies between 0.5% and 1.5%. Until now, the client was the one who had to face that expense. If we use as a reference a deed of 150,000 euros, it moves between 750 and 2,250 euros.
Why did the Supreme correct?
It takes into account, to make this decision, that the registrable business is the mortgage and that the only interested party in the elevation to public deed and the subsequent inscription of those businesses is the lender, that is, the bank. This could also mean a high economic cost for the bank, which would be around 4,000 million euros, according to Moody’s agency.
The new ruling corrects what was reflected in February, when the court ruled that the person who had to face the tax of documented legal acts was the client and not the entities with which the loan is subscribed; unanimously, the plenary session of the Civil Court ruled out abuse in the application on the borrower of the tax, something that has now decided to rectify.
Is it retroactive?
20minutes as regards the Voyadefenderte lawyer association, Yaiza Muñiz, “persons claiming from now can benefit from this ruling.” Adicae, meanwhile, argues that being an abusive practice “there is no possibility of prescription.”
What does the sentence say?
The ruling responds to the appeal filed by the Municipal Housing Company of Rivas Vaciamadrid against a ruling of the Superior Court of Justice of the Community of Madrid in June 2017. The ruling annuls an article of the regulations on property transfer tax and legal acts documented . And it is that it considers that the expression “in the case of deeds of constitution of loan with guarantee will be considered purchaser to the borrower” is contrary to the law.
Who can claim?
According to Muñiz, he can claim “anyone who has formalized a mortgage loan, and who has paid, who are all, the expenses of formalization, among which is not only the tax of Documented Legal Acts”.
And should it be claimed now or later?
Facua advises that those who mortgaged between September and October 2014 urgently demand from the Autonomous Treasury the refund of the Tax, before the term expires. According to the organization, it is “fundamental” that the users who signed their loans four years ago claim the reimbursement of the tax to the regional tax administration before the expiration of the statute of limitations period of four years.
According to the Tax Law, the statute of limitations of four years to claim the Treasury begins to be counted within 30 business days from the signing of the deed, but the consumer federation advises that users submit the claim even if they have doubts about whether the term a prescribed.
How can you claim?
It is still not clear. According to some experts, the claim to be effective would have to be made before the courts and foreseeably against the administration that collected the tribute. In this case, the hacienda or tax agency of each Autonomous Community. It would be done with an instance in which reference is made to the fact that the passive subject is the bank and not the user. The claim must be accompanied by a copy of the self-liquidation form of the IAJD, but in the case that they do not have it, they can provide all the possible data for the tax administration to determine the liquidation of the tax.
According to other experts, you would first have to file a claim with the bank and then with the courts. The necessary documentation must be collected. Then, locate the deed of mortgage loan whose expenses are claimed claim, along with notary invoices, property registration, appraisal of the property, agency and this tax. The next step will be to draft a claim document requesting the amounts paid. Asufin calculates that some eight million Spaniards have contracted a mortgage, and on average those affected could claim around 3,000 euros.
Can this decision make mortgages more expensive?
“To the extent that the bank would have to assume the amount of the tax, they will take that money from another side”, wields Muñiz. They can do so, he says, “by expanding the conditions of opening or establishing another type of commission.” He considers that the consequences may be that the loans are increased, although in a few years a court may question the mortgage clauses again.
What do consumers think?
Among consumers, Facua celebrates the change of criteria and urges the Government and the autonomous communities to “take action” to monitor the reaction of the bank. According to this association, this “excellent news” must change the meaning of the thousands of sentences that will be issued in the coming years. Since Asufin encourage the claim but believe that banks should make the return without a complaint.
And the bank?
Banks, credit unions and credit unions defend their position and claim they have never received “any amount” for mortgage tax and ask for “more legal security and clear rules.” The entities, the statement said, have always complied with current regulations, “approved more than 20 years ago,” and with the settled case-law of the third chamber of the Supreme Court and the Constitutional Court, “unanimous, and maintained until very recent dates. “, principle that otherwise has always presided over the relations of the entities with their clients.