Fee clauses

A Seville court has declared the nullity of the expenses clause, the sum of which amounts to a total of around 4,000 euros and has pioneeringly included the Stamp Duty Tax (AJD), without the need to provide the invoices that were paid at the time.

Until now, the courts had accepted the nullity of the Land Registry fees and, in most cases the notary fees, thanks to Supreme Court Ruling 705/2015, of 23 December. However, this was not the case for Stamp Duty, which normally represents more than 70% of the costs to be paid by the mortgagor, hence the novelty and importance of the ruling.

All of this is based on the aforementioned Supreme Court ruling, which confirms the nullity of certain mortgage loan formalisation costs, considering them abusive and exclusively benefiting the banks, but did not specify the legal consequences of such a declaration of nullity.

In the case of the Land Registry and Notary fees, both of which are exclusively civil, there was hardly any room for doubt, but not so much in the case of the Stamp Duty tax, which, being regulated by a tax regulation, which considers the applicant for the loan to be the purchaser, was left to the free will of each court.

Thus, this pioneering ruling once again achieved by Bufete Salmerón opens, through a twist in the legal argumentation, the way to the judicial claim of the aforementioned tax. The firm’s interpretation and that of the court coincide in terms of the obligatory nature of the payment of the tax by the financial institution.

According to the ruling, the fifth clause of the deed, which imposes on the borrower the obligation to pay notary fees, registration fees, stamp duty and pre-procedural or procedural costs, “must be declared null and void as abusive, and the defendant must be ordered to pay the plaintiff the said costs (…) plus legal interest from the date of payment”.

No need to provide invoices.

This ruling would also help thousands of people affected who do not have the invoices they paid for the incorporation costs, which even if they asked the bank or the notary’s office for them, they were not provided with them, and the judge has ruled that it is not necessary to provide documentation, as the calculations of these costs will be carried out in execution.

The court also established the nullity of other clauses such as early maturity, interest rate limitation (popularly known as the floor clause) and late payment interest, upholding the legal grounds set out by the firm and refunding the client a total amount of more than 15,000 euros.