Why you should review your mortgage contract

contrato de la hipoteca
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It has been a few years since you took out your mortgage loan with the financial institution you trusted. Today, astonished, you observe what is happening with the floor clauses and perhaps you have even checked that you do not have one, but our advice is still the same: have your mortgage contract reviewed by a specialised lawyer. Why? Because there are many mortgage practices that the courts are considering abusive and, therefore, null and void.

The already well-publicized floor clauses mean that an affected person can recover an average of 4,500 euros, the mortgage arrangement fees around 3,000 euros and so on, we could continue to add in the form of euros or damages for the consumer, the effects of other clauses introduced in the mortgage contract: late payment interest, the early maturity clause, etc.


One of the most recent developments is that the Court of Justice of the European Union has ruled that Spanish judges are obliged to review ex officio all mortgage credit clauses to determine whether they are abusive, including the early maturity clause.

This clause is the one that allows the bank, in the event of non-payment, to require the consumer to pay the full amount of the debt or, failing that, to hand over the property.

The ruling is important for two reasons. Firstly because thanks to it, a Spanish judge will be able to assess in each case whether one of the clauses introduced in the mortgage contract is abusive for the consumer, either because it is not transparent or because it implies an imbalance between the parties and – here is the main novelty – will be able to do so even if other clauses in the same contract have already been reviewed in previous proceedings.

The second reason why it is particularly relevant is because it opens up new questions and offers new legal arguments with regard to foreclosures and evictions. For example, what would happen if a person has been evicted and in their mortgage contract there was an abusive early maturity clause, could they claim?

These questions are in addition to those raised by other rulings handed down by courts of a different rank, but no less significant for that reason, such as, for example, the ruling handed down by a commercial court in Barcelona, which represents a clear step forward for compulsory dation in payment.


However, we are not only talking about abusive clauses in the mortgage contract, but also about the offer of mortgage products provided without sufficient transparency and to unsuitable clients. This is the case of mortgages indexed to the IRPH, Banesto’s Hipoteca Tranquilidad or multi-currency mortgages.

For all these reasons, Bufete Salmerón’s advice is that if you have a mortgage loan or are planning to contract one, let a specialised lawyer review the mortgage contract.

Our firm is an expert in banking and property law and the achievement of important legal milestones such as the ruling in favour of the retroactivity of floor clauses when the European Union had not yet ruled, the achievement of pioneering agreements for the refund of mortgage formalisation costs or even the obtaining of pioneering rulings in favour of purchasers of failed off-plan sales. All of these are compelling reasons to speak to us about any concerns you might have regarding bank or mortgage contracts .


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