Consumer associations have celebrated the judgment of the Supreme Court that states that the banks are the ones who pay the tax of legal acts documented (AJD) of the mortgages and not the clients, as up until now. The Supreme Court thus contradicts its previous sentence last February and the decision has surprised the sector. There is still no definitive and clear interpretation about the retroactivity of this decision (that is, if it only affects the mortgages that are about to be signed or those that were granted years ago). But associations sing victory and take it for granted.
"We are celebrating," says the president of the Association of Financial Users (Ausfin), Patricia Suárez. "We have been denouncing for a long time that the real interested in that the writing of the mortgage was public was the bank, because this way it has an executive title in case of non-payment". Suarez clarifies, however, that not all mortgaged can claim the money paid for this tax, and that the struggle to get reimbursement will not be easy.
If you have a final judgment, forget
The consumer associations consulted confirm that those mortgaged who have already claimed the tax and have a final judgment will no longer be able to demand this money from the entity with which they signed the mortgage. "But they are very few, because the banks have devoted themselves to resorting to satiety," says Enrique García, of the Organization of Consumers and Users (OCU). Everyone else has an open door to continue with their lawsuit or to put a new one. According to the association, there are six million families with the right to do so.
The judicial way, the best option at the moment
Manuel Pardos, president of Adicae, believes that banks will stop collecting the tax on new mortgages as of next days. "But they will resist returning the amounts already paid by consumers," he adds. The first thing would have to claim the bank itself. And if nothing is achieved, the courts are the recommended way. Unless it ends up constituting some type of special arbitration system to avoid an avalanche of cases, as it was tried to do with the ground clauses, although with little success.
The tax of legal acts documented It is an autonomous tribute that applies to all purchases related to a mortgage loan. This tax is calculated based on the mortgage liability, an amount that the bank establishes and that gathers all what guarantees the mortgage, such as capital, interest and expenses. Its value ranges from 0.5% and 1.5% of this value, depending on the Autonomous Community. In February of this year, the Supreme Court had guaranteed that this tax would be paid by the clients and determined that only the expenses of the clients would be shared between consumers and entities. physical documents signed at the notary, such as the stamp of the official paper, a minimum amount in comparison with the amount of the tax.
"Now he corrects his doctrine", explains Suárez: "You can change of criteria, basing it in a legal manner (…) ". In December 2015, the Supreme Court had declared null and void the mortgage clauses that charged all the expenses to the client, but without detailing what the customer would have to pay and what the bank would pay.
A tax that ranges between 1,000 and 4,050 euros
OCU explains that the AJD represent the most important part of the mortgage formalization expenses. CIt shows that the amount of the tax varies between 1,000 and the 4,050 euros, According to the Autonomous Community, and ensures that the ruling released on Thursday allows those who already had a pending claim to expand their claim or submit a new one, as well as allowing those who had not yet requested the refund to submit their request. "And those who are now hiring a mortgage have to exercise their right and ask not to pay this tax," Suárez insists: "Unfortunately, the others have to go to court."
Can you claim to the Treasury?
Is there a possibility to claim the Treasury, since it is a tax? "There will be some small doubt, but we believe that the tax was paid under a clause in a contract with the bank, declared abusive, that has more scope," Pardos interprets. "The law says that someone has to pay that tax and that the Treasury has to collect that money," says García, from the OCU.
The OCU calculates that, for a mortgage of 150,000 euros, with a mortgage liability of 270,000 euros and a tax rate of 1.5%, the AJD tax would mean the disbursement of 4,050 euros, to which the rest of the expenses would have to be added. that can amount to more than 1,500 euros (600 euros of notary, 200 of registration, 350 of appraisal, and 400 euros of management). In total, 5,550 euros, although this amount varies depending on the place where the mortgage was signed.