Expenses of constitution of a mortgage. What can be claimed and how?

The first legislation that deals with the conflict caused by the costs of formalizing a mortgage we found it in the December 2015 Supreme Court ruling. This judgment was the first to declare null, when considering them abusive, some of the clauses imposed by the banks in the constitution of these loans, specifically those that made the borrower bear all the costs of constituting a mortgage.

In March 2019, the new mortgage law increased consumer protection by establishing measures such as the improvement in the transparency of contracts mortgages, but also determines the issue of the distribution of expenses in the formalization of a mortgage. Thus, it establishes that the expenses of a fiscal nature, the notary fees of the deed, those of registration in the Registry and those of management will always be borne by the bank, while the appraisal expenses will be paid by the borrower (and those of the copies notaries that he requests).

Now, the Court of Justice of the European Union (CJEU) has delved into this legal protection of the consumer, in the Judgment of July 16 in which it considers that the expenses of setting up the mortgage must be assumed by "the applicant for the service in question or in whose favor the right is registered." And this is none other than the lender (entity that lends the money), which should assume them in full, unless the provisions of national law impose payments on the consumer.

What expenses can be claimed

The following mortgage constitution expenses can be claimed:

• Management expenses: They fall entirely on the lender since June 16, 2019, in accordance with the law regulating real estate credit contracts.
• Registration fees: They fall on the lender since he is the one who registers or notes the right.
• Notary fees: Since June 16, 2019, the notarial expenses of the mortgage loan deed fall on the lender. Prior to June 16, 2019, the notarial expenses fell equally between the borrower and the lender.
• Appraisal expenses: Consumers with mortgages prior to June 16, 2019 may claim that the bank reimburses the appraisal expenses. After this date, the expenses fall on the consumer, since it is understood that he can choose with whom and where to make that appraisal.
• Tax on Documented Legal Acts, hereinafter AJD tax: It falls on the lender if the mortgage is after November 10, 2018, and on the borrower otherwise.
• Opening commission: It can also be claimed if the financial entity cannot prove that it had reported in a clear and understandable way about its application in the mortgage and cannot prove that it corresponds to a service actually provided or to actual expenses incurred by the entity.
• Documentation: In a 2018 Supreme Court ruling It is established that, in relation to the stamp of the notarial documents, it will be paid in equal parts between the lender and the borrower. Copies will be paid for by whoever requests them.
• Insurance contract: It is still the policyholder who is obliged to pay the premium. Keep in mind that the bank cannot force us to take out insurance with a certain insurance company.

who can claim

If you have a mortgage and paid all expenses (management, registration, notary, AJD tax, opening commission), know that this has been considered an abusive clause, therefore and as long as it's within the deadline, you can claim a refund of part of these amounts.

What is the deadline to claim?

The term to request the reimbursement of expenses derived from a clause declared abusive is five years since it became known that the clause was abusive

In the case of clauses already declared abusive (administration expenses, property registry, notary, AJD tax...) the term begins to count from January 21, 2016, date on which the Judgment of the Supreme Court was made public, issued in December of that same year and which declared the abusive nature of said clauses.

How to claim

Given the complexity of the issue and the multiple rulings that have been handed down in this regard, it is advisable to go, first of all, to a expert, a consumer association or a legal professional, to advise and study your case.

Banks are not required to voluntarily return overcharged amounts, so if you want to claim, the first thing the consumer must do is gather the necessary information, mainly the invoices related to the expenses to be claimed.

Once this step is done, a claim must be filed with the Customer Service or Customer Advocate of the entity that granted the mortgage loan. You can consult the data of all the attention services of the financial entities in the Bank of Spain website.

The entity must respond to the claim within a maximum period of one month. If after this period you do not get a response or you are not satisfied with it, you can go to the Claims Service of the Bank of Spain.

Another option is to go to the judicial route. En the courts, the judge will decide if the conditions are met to consider the clause as unfair, in which case it will be considered null. The court will also determine the scope of said annulment and may recover, therefore, the amounts in excess that the financial institution has received.