Stamp Duty Archives

Supreme Court Decision Person Taking Out Mortgage Pays AJD

March 2, 2018 Mortgage Borrowers Pay AJD Property News

Supreme Court Ruling Mortgage Borrower Pays AJD

The average set-up costs for a mortgage is around 3,000€ to 4,000€ depending on the amount borrowed. This is roughly broken down into a tax on notarised documents (AJD), notary fees, administration fees, land registry fees, stamp duty and copies of the notarised document. Back in December 2015 a leading case paved the way for people with mortgages to claim back the costs that they had been forced to pay. The Court decreed that mortgage lenders do not have the right to decide these should be paid for by the other party. It stated such costs should be shared but did not go on to stipulate percentages. The implication was that it should be an even split at least.

This led to claims against mortgage lenders and the flood gates opened. The Law Courts are always busy, and the last thing needed was additional workloads. Having said which, many judges in Autonomous Communities seemed to champion the little man, striking out clauses they deemed Unfair Terms and forcing the mortgage lenders to pay back what they had charged plus legal expenses of the claimants.

All has now changed again. On February 28^th 2018, the Plenary of the First Chamber of the Supreme Court deliberated and decided two appeals in favour of the mortgage lenders. The Obiter Dictum, or wider generalisation to be taken from this, is that the Transmissions Tax on Documented Legal Acts (AJD) must normally be paid by the client, while the stamp duty on the notarial documents will be paid by both parties. Costs of copies of the mortgage will be borne by the party who requests them. In Andalusia the AJD is 1.5%. this leaves notary fees, administration fees and land registry fees up for grabs.

The Court’s judgment is based on a Statutory Regulation that says the loanee is the one who pays the tax and as a result the party mortgaging their home, the mortgagor, is liable. The full court decision has yet to be published, but as it stands, without the in-depth analysis of the Court’s findings, the court has used a Regulation to serve as a magic wand to restore order and quell rebellion. But a Regulation has less legislative force than a Statute conferred by Act of Parliament and is not of universal application. It wields the equivalent force of a statutory instrument.

A Supreme Court decision ‘trumps’ that of a lower Court. But, provincial courts in Autonomous Regions have consistently ruled in favour of the mortgagor since the leading case in December 2015. Until there is legal certainty, this political duel looks likely to continue. Let’s see what the Judgment proclaims when it is published in the next few days.

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Property Taxes in Andalusia when Buying a Property

September 24, 2017 Real Estate

Property Taxes when Buying a Property in Andalusia

Buying a property in Spain is a straight-forward process. Each autonomous region has the right to set its own taxes, so differences do exist, although small. We help people buy and sell properties in Andalusia, in the provinces of Málaga and Cádiz. So, we provide information from the Junta de Andalucia’s website regarding the taxes levied on purchase and you can find general information on taxes levied on the Seller by the Town Hall, here. On the whole, budget about 13 – 15% on top of property purchase price for attendant costs. (Buying at auction has different requirements, find more here.)

Tax Payable – New Properties

First Transmissions of properties attract 10% tax plus a stamp duty on the drafting of the first title deed which is 1.5%. Total is 11.5%

Tax Payable – Resale Properties

For most people you pay 8% up to the first 400,000€, 9% on next 300,000€ and 10% on all amounts accruing after that.

The amount owing is calculated by multiplying the relevant band with the applicable coefficient as follows:

Transfer of Tangible Assets

a) Property Transfer:

As a general rule, in the transfer of immovable property, as well as in the constitution and assignment of rights in rem over them, except in the real rights of guarantee, the tax rate will be obtained by applying, on the basis of the liquidation, the rate that results from the following rate:

Band payable in Euros	Total Fees Euros	Amount Due Euros	Rate Applicable
0.00	0.00	400,000.00	8.00%
400,000.01	32,000.00	300,000.00	9.00%
700,000.01	59,000.00	There after	10.0%

Garages attached to the Property Purchase are included in the rates above, with a maximum of two. After which, in the case of transmission of buildings classified as urban parking space, the following rates apply:

Band payable in Euros	Total Fees Euros	Amount Due Euros	Rate Applicable
0.00	0.00	30,000.00	8.00%
30,000.01	2,400.00	20,000.00	9.00%
50,000.01	4,200.00	There after	10.0%

b) Transmission of movable property and livestock

(as well as the constitution of real rights over them other than the guarantee):

4 %, in general
8%, on the transfer of boats of more than 8 metres in length and on vehicles of more than 15 horse power and objects of art and historical antiquities.
5% in the transmission of real estate where the real value does not exceed 130,000 euros and it is to be the Buyer’s permanent residence and the buyer is under 35 years of age, or 180,000 euros in the case of a permanent residence where the Buyer suffers from a disability which is registered and measured as being equal to or greater than 33%.
2% in the acquisition of housing for resale by a natural or legal person who carries on a business activity to which the rules of adaptation of the General Plan for the Real Estate Sector apply. (Aimed at constructors, developers and banks with repossessions, for example.)
1%, for financial instruments of real security rights, pensions, bonds, loans and cession of credits.
Leases are governed by the scale of tax fixed by Law.

* With effect from January 1, 2015, tax rate offsets will be applied in the creation and exercise of purchase options in lease agreements related to certain payment operations.

Budget 13 – 15% on top of Property Purchase Price

In addition to the taxes there is also the need to pay stamp duty for new builds on the pages notarised for the Title Deeds, as well as general application of Notary’s fees, Land Registry fees and Lawyer’s / legal assessor’s fees (Gestor). These days, most mortgage set-up costs are assumed by the lender. As a rough rule of thumb, allow 13% – 15% on top of the Purchase Price and note stamp duty for new builds.

Disclaimer: TMT Spain Real Estate has provided this information as a general guide only and it must not be relied upon in place of legal advice. Legislation is constantly updated and the reader must satisfy herself/himself of the accuracy of these contents.

“The ache for home lives in all of us, the safe place where we can go as we are and not be questioned.”
Maya Angelou

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Spanish Mortgage Costs Supreme Court Ruling – Lender Pays.

March 14, 2017 Real Estate

Good news for people buying Spanish Property with a Spanish Mortgage: Spanish Mortgage Costs Supreme Court Ruling – Lender Pays.

Spanish Mortgage Cheaper

In the past, buying a Spanish property by taking out a mortgage added up to 4% on the Property Purchase Price. This pushed the costs on top of the net property price to as high as 15%. Much of this happened because the mortgage lender forced you to assume the costs of the mortgage. Incidentally, this was a cost you could not claim against or offset as costs against income when you submitted your tax return because you were not the benefactor of the arrangement.

Spanish Legal System Defends Consumer

The Spanish Legal System should be applauded for its support of the ordinary consumer in this way and let’s hope it leads to renewed confidence in the property sector within Spain. Once more, the conclusion is that, with property prices still subdued, it is a Buyer’s Market and there has never been a better time to dip your toe’s in the market. This applies if you seek to take out a mortgage or pay for the property outright.

[Sentencia TS 705/2015]

The Supreme Court has analysed contractual terms between banks and consumer and adjudged them to be Unfair Contract Terms. As a result, all costs attributed by the bank to the consumer in which it is the bank who is the passive subject and could, in theory, deduct such costs from tax returns, must be borne by the bank.

Obiter Dictum

The Obiter Dictum of the decision looked at costs derived as a by-product of contracting the mortgage. This refers to Notarial, Land Registry (notifying the Charge against the Property on behalf of the Mortgage Lender), Transmission Tax, Stamp Duty for documents drafted in the Notary and other costs stemming from the mortgage – including Mortgage Indemnity Protection.

The judgment is available here, (in Spanish only): http://www.poderjudicial.es/stfls/TRIBUNAL%20SUPREMO/DOCUMENTOS%20DE%20INTER%C3%89S/TSCivil%2023.12.15%20%282658-13%29.pdf

Minutes of the Decision here, (in Spanish only):

http://www.poderjudicial.es/stfls/TRIBUNAL%20SUPREMO/DOCUMENTOS%20DE%20INTER%C3%89S/Nota%20de%20la%20Sala%20de%20lo%20Civil%2021%20de%20enero%202016.pdf