When a consumer goes to a restaurant to order a pizza, he pays for the pizza and that’s it. If he orders it from home, at most, there will be shipping costs. Or maybe one or two euros more for extra cheese. There are no more procedures or clauses, no trap or cardboard. On the other hand, when a buyer decides to buy a home and, to do so, ask for a mortgageYes must pay certain formalization fees Of the same. Since they are large sums, they can involve a lot of cumbersome concepts that raise doubts. Proof of this is that, in 2021, the Bank of Spain processed 34,330 claims from bank customers, 61% more than in 2020. Of those 34,330, more than 7,000 were related to the payment of mortgage formalization expenses.
notary fees, property registrationmanagement fees, assessment and taxes… What corresponds to the bank –which is the one that, after all, earns money with the loan– and what to the client?
The borrower only has to pay the appraisal costs
Antonio López Arenas is responsible for the procedural and civil/commercial areas of the firm Horizon Lawyersand explain to Global Consumer that, from the June 16, 2019when Law 5/2019 came into force, the borrower (that is, the beneficiary of the credit) “assumes only the appraisal expenses”. These tend to amount, on average, to about 350 euros. In this way, the financial institutiontakes care of the costs of management, notary and property registration”.
Thus, the key is in the date: before or after June 2019. For loans that were signed before that time, López details, “jurisprudence has established that the bank should assume the costs of management, property registration and appraisal”, while the fees for the notary for the loan deed “are faced both parties 50%”.
Documented Legal Acts
In this way, a complex panorama is drawn in which some consumers can get lost. Another controversial charge is the Tax on Documented Legal Acts (IAJD). “The Supreme Court established in 2018, after changing its criteria twice in a few weeks, that the obligor to pay was the borroweralthough Royal Decree-Law 17/2018, of November 8, modified the rule so that from that moment the obligor was the lender”, points out López Arenas. In other words, as of today, neither is the mortgaged party the one who pays the IAJD.
It is a significant relief, because before, this tax was paid twice. This is how the comparator Roams explains it on its website: “Not only does the bank pay it when granting the mortgage loan to its client, it must also be paid by the client as part of the taxes to be paid for the purchase of the home that is going to be mortgaged. Until the approval of the new mortgage law, it was a tax that the client literally paid twice: one when buying the house and another, when signing the mortgage”.
Recover 5,000 euros
the same opinion Almudena Velazquezthe legal director of the portal Reclamador.es. “What needs to be distinguished is whether or not the loans are underwritten as of June 2019”, he explains to this medium. The comings and goings “have caused confusion in the consumer”, and there are those who signed a loan a few months before and cannot claim, because it is not applicable to their case. She also underlines this expert that some rates “have generated a lot of conflict” until the European Court has ruled.
According to Reclamador.es, “the payment of these expenses should not have been charged exclusively to customers, but the banks included an abusive clause which charges the client the Tax on Documented Legal Acts, notary fees, registry fees, appraisal fees and agency fees”. This platform indicates that, with legal interest, the amount that an affected person could recover exceeds 5.000 euros.
Banks sneak other expenses
Now, if the law clearly establishes what each actor involved pays, why has there been so much fuss? Because, as López Arenas admits, sometimes these rates are camouflaged. “Banks operate with profitability criteria when granting loans. If the regulations require them to face expenses that they did not previously assume, it is logical that they try to compensate for this loss of profitability increasing other remuneration concepts in their favor”, he argues. In the opinion of this lawyer, “it would be naive to think that banks do not try to cover this loss of profitability”, for which it is most advisable that the beneficiaries of the loan “know the content of the contract and, in case of doubt about the scope or possible abusiveness of the clauses, that consult with a lawyer”.
On why they have increased so much at this time, López Arenas explains that expense claims began to be raised en masse as of 2016. But the banks “systematically ignore almost all out-of-court claims, even those made to the Bank of Spain ” in order to force consumers to go to the judicial way. “The problem is that in many provinces (among them, Madrid, Barcelona, Seville and Valencia) the specialized courts in abusive clauses that were designated on May 25, 2017 by Agreement of the Permanent Commission of the CGPJ after the increase in litigation for the floor clausesand that many of these courts, which are competent to resolve claims for mortgage expenses, they were born already collapsed by designating only one per province”, explains López.
Going to the Bank of Spain does not guarantee anything
For this reason, a procedure “can last four or even five years in the first instance in several of these courts, which, added to the fact that the amounts to be claimed are less and less, makes the judicial route less attractive for clients and for law firms that do not manage these demands as mass lawsuits, and it is thus explained that the volume of claims before the Bank of Spain rises as an alternative, although the banks do not always comply with the resolution of the Bank of Spain”, details the Horizon lawyer.
For his part, Vázquez speaks of “monumental traffic jam” as a result of the fact that it was established, in 2017, that this type of claim would be handled by a single court per province. “The rulings on what corresponds in each case are now being known,” he details.
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