New ruling favourable for claims of mortgage costs
Recently we published an article with regards to court claims in mortgage expenses (Notary fees, Land´s Registry fees, Property Appraisal and management costs among others).
Furthermore, a First Instance Judge from Alcorcon, (Madrid), has sentenced Bankia to refund all above mentioned mortgage set up costs including the Stamp Duty Tax which represents around the 70% of the total in reclaimable costs.
This sentence is based in the decision of the Spanish Supreme Court 5618/2015 23rd December 2015 that says that is abusive imposing to the mortgagors to pay this tax because the law that rules the Stamp Duty Tax in its Article 28 says that: “That the borrower is the taxable person or the entities that urge or request such notarial documents or those whose interest are issued” Because commanding this to clients especially contravenes their consumer rights, Article 89.3 TRLGCU and especially when the bank has an especial interest for the property to be duly notarised and registered otherwise banks could not exercise any real guaranty on this.
Banks consider that the mortgagors (borrowers) should pay this tax. The Stamp Duty Law does not clarify much on this matter; and different interpretations comes up from other Civil Courts which opinions are not consistent. There are judges who consider that the beneficiaries of the mortgage loan are the mortgagors or borrowers and others think that these are the banks.
Nevertheless, we will have to wait for the Supreme Court to lay on more about case law for subsequent claims based on these grounds to establish a stronger precedent.
What is the Stamp Duty Tax? It is an existing tax applied onto all mortgages which is based in the calculation of stamped paper and notarial documents, the sum of all these concepts are covered and guaranteed by the mortgage itself (borrowed capital, ordinary interest, interest arrears, etc.). The exact amount of this tax will depend on each autonomous community, as El Confidencial says.
Normally clients with mortgages might pay an average of €3,500 for Stamp Duty Tax.