The Supreme Court has declared void, for abusive, a series of clauses that have systematically been included in mortgage loans in Spain.
If we review our deed of constitution of the loan signed before a notary, we will be able to verify that most probably the bank included a clause (usually it is usually the Fifth Stipulation), in which it indicates that all the expenses derived from this writing will be on account of the lender, That is, the consumer.
These expenses are related by the Supreme Court in its ruling 705/2015 of December 23, 2015, and are: the bill of the Notary, Property Registry, Gestoría that processed the deed, the invoice of the appraisal of the floor and even, The Tax of Documented Legal Acts related to the loan.
The clause on the attribution of expenses is considered null and void because it does not allow a minimum reciprocity in the distribution of the same with respect to the notarial and registry intervention and it relapses all over the mortgage.
The amount of the claim will vary depending on the amount of the loan, around 3,000 euros, which can be claimed by all those who have signed a mortgage, according to Carlos Martinez Verduch, an attorney with Ballester, consulted by Valencia Plaza.
In order to recover the money from the bank, the first step, according to Martínez Verduch, is a prior claim to the bank and before the foreseeable neglect of it, the judicial claim, which must be accompanied by a copy of the invoices paid (notary, Registration, Management, Valuation, Tax) along with the deed of loan. If they are not available, duplicates must be obtained from them.
Who can complain?
Regarding the possibility of claiming canceled mortgage expenses, the criterion of the Ballester Office is that it is viable, because the claim is based on the nullity of a clause for abusive.
However, Ana Pelechano, from the Valencian firm JLL Abogados, points out that the deadline for claiming the repayment of these amounts varies depending on the date of formalization of the mortgage loan and its cancellation, always in relation to the date of the judgment, which Is the 23 of December of 2015.
Thus, if the loan is still in force, it can be applied for until December 24, 2019, four years after the Supreme Court's ruling. If it has already been paid, it can be requested in those loans whose last payment was made within four years prior to the date of the judgment, that is, if it was made after December 23, 2011.
According to Pelechano, "in general, this right is recognized only to borrowers who have the status of consumer and user being able to claim part of the expenses paid by the fee of notaries and registrars, as well as by the Tax of Acts (ADJ). "
Taxation when the money recovers
If the bank or judge judges totally or partially the return of these expenses to the client by the bank, this has a tax consequences in the IRPF to consider, according to Rafael Sastre Monzó, economist of the office Nova Aseinte:
"If it is decreed nullity of the clauses that imposed on the client the full charge of the expenses of notary, registration, appraisal, management and documented legal acts, and that amount is returned to him, its fiscal consequence in IRPF is that it must be undone what Would have affected the outcome of the statement, "warns Sastre.
That is, you have to go back in time. If, at the time, such expenses were part of the normal housing deduction, a supplementary declaration will be made to reduce the amount of said deduction.
In the event that such expenditure is financed and therefore included in the amount of the quota, the tax impact is practically nil, since it would only affect the proportion of such expenditure in relation to the total financed.
"Those statements before 2012 are prescribed, so it would not be necessary to make any adjustment if the mortgage was constituted in a previous year and these expenses were paid in cash," stresses the tax expert.
On the other hand, if the institution is ordered to pay costs (attorney's fees and attorney's fees), the Treasury has already clearly stated that those costs, even though they have been paid directly to lawyers and the client has not " Money "are classified as equity gains and are taxed on the general scale of the tax (Binding Consultation V0767-16).
According to Rafael Sastre, in average terms, the cost in IRPF of taxing the coasts can be about 150-300 euros (on indicative costs of about 800 / 1,000 euros).
Adicae recommends caution
The Association of users of banks, savings banks and insurance Adicae advised consumers this Monday