Judgement Nº 705/2015 of the Supreme Court dated 23 December declared a clause to be abusive, wherein the BBVA imposed the payment of fees, taxes and commissions derived from a mortgage loan on a borrower, and obliges these to be reimbursed.
In this clause, it was stipulated that all the taxes, commissions and fees incurred for the preparation, execution, correction, submission, modification and segregation were exclusive to the borrowing party, as well as the constitution, conservation and cancellation of its security interest, with premiums and other costs corresponding to the insurance of damages also corresponding to the borrower. (The wording in Spanish of the relevant clause regarding the Judgement can be seen at the following link: http://cd00.epimg.net/descargables/2017/01/04/6c6aa09d305ccdf9aa1381867bf7de10.pdf ).
The Chamber concludes that, with respect to the execution of notarial deeds and their registration, which is necessary for the creation of the security right, both the notarial fee, as well as those of the property registrars, ascribe the payment obligation to the applicant of the service in question or in whose favour the right is registered
or who request certification. And who has the main interest in the documentation and registration of the guaranteed mortgage loan deed is considered, without a doubt, to be the lender, as in this way an enforceable title is obtained, which constitutes the real security and takes on special implementation options.
Therefore, the mentioned clause not only does not allow for minimum reciprocity in the distribution of costs arising as a consequence of notarial and registry involvement, but places all this responsibility on the mortgagor, despite the fact that the application of regulatory standards would allow for equal distribution as, although the party benefitting from the loan is the customer and such business can be characterised as the main frontage to constituting a loan, it should not be overlooked that the security is guaranteed in benefit of the lender. This means that this is a condition that causes a relevant imbalance to the consuming customer who would not have reasonably accepted this within the framework of personalised negotiation; and which, furthermore, is also specifically highlighted in the catalogue of clauses which the law classifies as unfair terms.
Taking the mentioned Judgement of the Supreme Court as a reference, consumers are achieving the recovery of costs incurred from Notarial and Registry invoices and, in some cases, those sums also paid for Documented Legal Acts Tax (stamp duty).
Most recent Judgements uphold consumer claims, such as, for example, the Judgement of the Pontevedra Provincial Court, of 14 November 2016, which rules against Banco Popular Español, the Judgement of the Court of First Instance Nº11 Oviedo, of 9 December 2016, which rules against Liberbank, and the Judgement of the Court of First Instance of Nº 6 Granollers, of 21 December, ruling against Catalunya Banc.
