The last two days have been confusing for Luis, a Madrilenian who is about to buy a house and prefers not to give his real name. On Thursday, a judgment of the Supreme Court indicated that it is the bank, and not the client, that must pay the tax on documented legal acts of the mortgages. On Friday, the same Court reclined: announced that it would review its own decision for the "enormous economic and social repercussion" that it implied, leaving in the air who has to pay. And Luis, who was going to sign his mortgage on Friday, canceled his signature.
"It was planned early in the morning and, on the way to the notary, it was canceled, in the notary they had three signatures and all were suspended," he tells, still annoyed, on the telephone. "I spoke with the bank and in principle we signed next week, but I'm a bit skeptical." If everything goes according to plan, it will go back to signing in the next few days and will have to pay the 5,000 euros that the tax in question implies. "In my bank they are confused." Before I went to sign, I called to see if I had to pay or not, because Thursday's ruling was very clear, I suppose on Monday they will tell me something and they will keep charging me, because they will have to buy time see what happens. "
The unusual reversal of the Supreme Court, announced last Friday at noon, has left in a limbo of uncertainty to many people: those who are in the process of buying a home, those who sell it, the real estate that manages it and their own bank offices, that still do not know what to do or how to communicate to their clients the possible changes in the conditions of their mortgages. Also to the lawyers, who on Thursday rubbed their hands before the wave of claims that was going to arrive and on Friday they did not see it so clear. "This catches us the wrong way: to the legal profession in general and to us in particular because of the number of cases we have," says Iván Metola, CEO of the claims website Indemniza.me. "It is unheard of that they recover for the economic repercussion that it supposes to the bank".
The mess in which the affected buyers have been seen varies according to the entity and the precise moment in which they had the signature. Diego (fictitious name) is about to sign a mortgage and upon hearing the ruling he contacted his bank, Kutxa Bank. The branch that he has visited several times in the last weeks to close the agreement assured him that all the workers were going to meet "to see how they approached" the new scenario. "They told me they were waiting for instructions, but they did not give me more details," he explained to eldiario.es, "when I heard the rectification, I called again but I have not had an answer.
To Gerardo, a Pontevedra who asks not to appear with his real name, the bad news caught him teaching. "We were going to sign on Monday, they told me on Wednesday that everything was fixed, on Thursday the notary received the information from the vendor and I went to work on Thursday afternoon, they called me from the bank saying that, by the decision of the Supreme Court, they were paralyzing all mortgages ", narrates frustrated. "The seller came from Barcelona and we already had the ticket, and on Friday morning, the bank told me that since they did not know what tax they had to pay, they could not send the information to the notary. do this to me. "
Your bank, the Caixa Rural Gallega, Suspended all mortgage firms on Thursday after hearing the ruling. As his was small (70,000 euros), Gerardo thought of making an independent deal with the owner. "I talked to him and we thought to solve it between us, we called the notary, we asked him, we went ahead … and on Friday at one they called me from the bank, we continued with the mortgage and they pay the tax", he explains. "At that moment I thought about it, because I did not want to have a deal with the bank, but the other was a fix, I accepted and after three minutes they call me back and tell me that the tax is paid by me." The Supreme Court had just said that I said, I say Diego, at two o'clock in the afternoon, with the notary about to close, I accepted, it made me angry because it is a bank that failed me, and they will have their explanation, but they did not consider that there were That left the pull, that pull on the handbrake is a panic reaction. "
"One of the key pieces of the castle falls"
The story has not been very different in some real estate, which overnight sales slowed. From the firm Globalpiso, in the center of Madrid, they say that everything exploded on Friday morning. With the news of the ruling of the Supreme Court in the press, radio and television, half a dozen clients pending to close operations called to ask in what situation they were left.
"We have to stop operations because we do not know what is going to happen, as intermediaries we can not position ourselves because we do not want to harm either of the two parties, this affects us enormously, right now we have 4 or 5 operations to sign. of the key pieces of the castle falls ", informs David F. Ferreiro.
"My clients in particular will not be affected much: we offer real estate from the middle to the highest, which will affect other people more," adds Jesús Gil Marín, founder of Inmobiliaria Gilmar, specializing in housing in the best areas residential areas of Madrid and the Costa del Sol.
The binding offer – a document with the clauses of the mortgage that the bank is obliged to deliver at least three days before the signing – will be the one that saves many buyers from the sudden withdrawal of their entities. "We have three signatures next week and they have not been canceled," says Elena Pérez, head of a Redepiso office in Madrid. "You do not cancel a mortgage in 24 hours, by law they must give you the offer three days before so you know what conditions you are going to sign, and it can not be changed, it is not legal that they arrive and change the conditions of an agreed contract. Some bank has done that, it has been a reckless reaction. "
What is going to happen?
The main Spanish banks withdrew on Thursday -When the Supreme Court said that the tax was going to be paid by them- the mortgage information on their websites and, despite Friday's announcement, they have not yet put it back. The tax on documented legal acts is the highest expense of all mortgage loans (it is between 0.3% and 5% of the total), so if they finally have to pay it, they will reduce their profit margin. The Plenary of the room will decide it in the next weeks.
Although the plenary decides to revert the "jurisprudential turn", the lawyers will continue with the claims that they already managed. Why? Because it is not the first time that is pronounced in favor of the client. In 2015, it issued a ruling stating that the clauses that impose all the contract costs on the consumer were abusive and that those costs should be shared. But it did not clarify what each of the parties should pay. Grabbing on to that, many mortgaged demanded that the tax in question be returned to them.
"This started then, but it became so nuanced that it was unrecognizable, and on Thursday the news, with much more relevance, of the change in jurisprudence jumps in. Our strategy will continue to be the one we had until today: adapt procedures and modify demands to claim it. sentence that has been issued is that of Thursday, "adds the CEO of Indemniza.me. "We'll see what it ends up with."
Another important nuance will be who to claim the tax: whether to the banks, to impose abusive clauses, or to the Treasury, which is the one that has charged. "The issue is that nobody has declared abuse," says magistrate Natalia Velilla to this newspaper. "The third room has said that the article that regulates this tax is not correct." In his opinion, "the sentence will only allow the mortgaged claim to the regional haciendas the tax refund, provided they have not spent more than four years since the mortgage deed."
The lawyers consulted, however, are directly claiming the banks to avoid that limitation of four years and considering that the clauses are abusive. "You could claim the Treasury, but there is a temporary limitation, but you can demand that the bank pay you what you paid to the Treasury because of an abusive clause for that amount." The bank takes advantage of the writing to charge you all the expenses ", continue from Indemniza.me. "And he's the most interested in registering that mortgage."
Like the clients, the offices are the other big ones interested in that the Supreme Court does not reject and the sentence that dictates that the banks are the ones that pay to go ahead. "There's a lot of business in it," they conclude. "Especially because this is the biggest expense of all mortgages." If people claim and win, the compensation will be large and the lawyers will take "a higher fee".
Those affected consulted now wait for the new instructions from their banks to proceed with the signatures: they understand that, unless they have already signed the binding offer without it, at the moment they will have to pay the tax, that amounts to an average of 3,000 euros per mortgage. If the Supreme does not back down on his own decision, they will claim it later.