After the perplexity, chaos has arrived. Last Thursday the Supreme decided that the mortgage tax would be paid by the bank and not by the client. The next day, the Administrative Contentious Chamber he froze that sentence waiting for a later decision of the plenary. In principle, the bank said that it assumed the payment of the tax, but after the intervention of the room, most of the sector has returned to make customers pay until news arrives.
Since Thursday, the bank was mobilized before the Ministry of Economy and the Bank of Spain to convey "the enormous seriousness that was the sentence," since the return of the tax with 15 years of retroactivity could kill half the sector, according to a high banking executive, with a cost of at least 18,000 million.
Those responsible for moving this message were the heads of the AEB, José María Roldán, and the CECA, whose general director is José María Méndez, who had the help of the council, where the presidents of the entities are. Some entities consulted expected these claims to reach the General Council of the Judiciary and the Supreme Court. Now the bank trusts that the plenary session determines at least that the sentence does not have retroactive character.
In the practical field, if the change of criteria in justice was rapid, it was faster in banking. The Spanish Banking Association (AEB), the CECA (which brings together the banks of the old savings banks) and the credit cooperatives issued a joint statement last Thursday saying that they would abide by the sentence of the Supreme, which supposed to assume the payment of the tax from that moment, after criticizing the legal insecurity provoked.
However, on Friday, with the change of position of the Supreme Court, most of the entities consulted have changed their opinion. Now they believe that "the situation has returned to Wednesday, that is, it is up to the client to pay the tax of documented legal acts, as established in the law since 1994," sources consulted note. In fact, the associations have transmitted their entities to act freely. .
A minority of banks have preferred to assume the cost of the tax. The formula used is not to charge the customer the provision of funds that is made in mortgages. Another great entity has taken a Solomonic decision: add an addendum to the mortgage contract that states that if the situation changes, the bank will help the client to claim the amount before the Treasury, that is, they do not commit to return it. For now Santander, BBVA and Bankia do not offer mortgage prices on their websites "because we do not know the real cost of credit", they justify.
The entities admit that, in the face of this mess, some clients have preferred to postpone signing the mortgage. "As long as you do not lose money because of earning or commitments, it's a good solution," says one executive.
Among the notaries, there is also bewilderment. Most of them have limited themselves to informing clients of what happened. "At the moment, there is no practical novelty in the signing of mortgages, nor have we had instructions or a new position from the College of Notaries," say sources from one of the great notaries of Madrid.
Impossible to redo the documents
The banks that will continue to charge the customer tax argue that it is materially impossible to redo the documents of the mortgage firm of the next few days so that the bank will pay. "In addition, the legal services believe that it would be illegal for us to pay now because the norm has not changed yet, the ruling has not taken effect," explains a senior executive at a large bank.
These sources, and other lawyers consulted, remember that Thursday's ruling has not yet been published in the BOE, so it is not mandatory, except for the parties, if it has already been notified.
And they add another argument: "Expect events is the most reasonable because the ruling has not created jurisprudence since it is required that there are two, not just one." After the decision of the plenary, will create jurisprudence and clarify everything ", point from a old savings bank.
Fernando Zunzunegui, a lawyer specializing in financial regulation, agrees that no jurisprudence has been created, but he is clear about what can happen now: "Luis Díez-Picazo, the president of the Third Chamber of the Supreme Court, will come to the rescue of the bank, Too many billions at stake, this disastrous situation is the last chapter of the lack of attention that governments have had with mortgage regulations. " Zunzunegui recalls that, despite IMF warnings about the need to regulate this market, the new mortgage law has been two and a half years behind in its approval. "
Another lawyer consulted believes that the Government could intervene by establishing the non retroactivity of the collection of the tax in the mortgage decree, which is in process. The government was one of the instances that banks went to last Thursday to convey their serious concern, in addition to the Bank of Spain, according to several consulted sources. The intention of the banks was that their concern be transmitted to the Supreme Court and the General Council of the Judiciary. However, the banks remind that "the situation was also worrying for the regional haciendas, for the claims of tax refund, and for the judiciary itself for the collapse that the lawsuits would represent".
Up to 25,000 million
The fact is that Thursday's ruling ignited the alarms in the banks. "On Thursday, the situation was analyzed and the impact was brutal, if it had to be paid back in 15 years, the cost could be about 25,000 million (or 18,000 at best), which meant that half of the financial system, the total collapse, "explains a senior executive at one of the big banks.
However, adds this source that asks for anonymity, "if the retroactivity only affects the last four years, because it is the time to claim a tax, it would amount to about 2,000 million, which would mean that some entities would go to zero profit; something bad, but less dramatic, "he admits.
Meanwhile, consumer associations are clear about it. "You have to claim the tax from the bank, and if you do not agree, go through the courts," say OCU sources. Also Javier Gastón, from the Collective Denunciation platform, advises to claim. "The procedure can last a month or two, do not wait," he says. Now everyone is awaiting the next plenary session of the Supreme Hall. There is a lot at stake.
JOSÉ LUIS ARANDA Madrid
The decision of the Supreme Court that leaves in the air who pays the tax of legal acts documented "is not good news". Who says it is Fernando Encinar, co-founder and director of studies of the Idealista portal, but his words summarize well the feeling of other actors of the Spanish real estate sector. The words "insecurity" and "incognito" are repeated in all of them. And nobody doubts that it will have effects on the loans.
"At the very least, the granting of mortgages can slow down and that is not good for us," says Juan Antonio Gómez Pintado, president of the Madrid real estate association (Asprima) and also of the Spanish developers and builders (APCE). The businessman believes that the ruling of the Supreme Court and its subsequent revision "has caught everyone by surprise" and "has generated an uneasiness in the financial system." Therefore, he asks for "a period of reflection" that he himself begins: "Somehow we should have a law that is not subject to so much interpretation, I believe that when a law is enacted, it needs to generate security."
Juan Velayos, CEO of Neinor Homes, is harsher in his criticism of the court's decision. "The functioning and politicization of judges and courts are currently a destabilizer of economic recovery and a generator of legal uncertainty, which is in itself a real nonsense." Velayos, "with all due respect to the Supreme Court," adds that "it is frankly worrying that decisions of such scope can be taken without a serious and rigorous reflection on the impact and consequences thereof."
On the effects that can occur, Encinar highlights "that a lot of unknowns have been opened" and that "there is a lot of casuistry". What he does not doubt is that the decision "makes it difficult to grant mortgages, since then the concession and future constitution of mortgages is questioned and all the conditions that the people were negotiating are questioned". "Imagine those who have not signed yet [por la ralentización que se produjo el viernes], but there is also a lot of people who do not know if they will be able to buy a house or not, "he adds.
For the director of studies of the real estate portal, "the market is hypersensitive" and for that reason points, in the long term, to another possible unforeseen consequence. "The decision of the Supreme Court complicates the purchase of housing and the carom that can cause is that more people of forced way have to live rent," he warns.