Supreme Court Rules Banks Must Pay Mortgage Tax, Not Clients

29th October 2018

The Spanish Supreme Court rules that banks and NOT clients should pay mortgage tax.

Spanish Banks receive yet another blow with the new ruling passed - mortgage holders could be in for a substantial refund.

The Impuesto sobre Actos Jurídicos Documentados (AJD) is a tax paid on certain documents, including mortgages, which are signed before the notary. The payable amount is calculated on a percentage of the mortgage guarantee, a figure which varies from region to region – in Andalucia the percentage is around 1.5%. The bank is the only party with an interest in getting the loan certified by a notary – a process which allows the banks to start foreclosure proceedings if the client defaults on the mortgage payments. The formality is not protecting the consumer, only the banks so the AJD should therefore be paid for by them, the court ruled.

If the 8 million mortgage holders in Spain were to demand the fee back, the banks would have to pay out around €24 billion, working on an average AJD fee of €3,000 per loan, according to consumer organisation Asufin. However, refunds will only be limited to loans which were taken out in the last four years due to a stipulation in the law which states responsibility for acts of this kind expire after this time.

Interestingly, the ruling is a reversal of the Supreme Court’s original decision made back in February, when it concluded the banks could charge clients the AJD.

On announcement of the ruling, shares in Bankia, CaixaBank, Bankinter, Sabadell, BBVA and Sabadell all fell in the Spanish stock market.

This comes as a massive blow to the banking sector which is still trying to cope with the fallout from the abusive ‘floor clause’ saga – lenders were found guilty of hiding floor clauses deep within mortgage contracts, setting a minimum interest rate for borrowers, even if the benchmark rate – normally the Euribor – dropped below it. The court found this to be unfair and ruled that borrowers could claim the money back.

Courts are still struggling to deal with the hundreds of thousands of ‘floor clause’ claims that have been submitted.

With the new mortgage tax ruling, the General Council of the Judiciary, Spain’s legal watchdogs, and regional governments, need to “give resources to the special courts ahead of the flood of expected claims,” says Asufin.


Published by David

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