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News
The Supreme Court resolves that the banks pay the mortgage appraisal expenses
 29

  JAN

The Supreme Court resolves that the banks pay the mortgage appraisal expenses

The Supreme Court has ruled that banks must pay the mortgage loan appraisal expenses, as established by the Plenary of the Civil Chamber of the National Court. In this judgment, the court decides on the economic effects of the declaration of nullity of the expense clause of mortgage loans between banks and consumers.

The Supreme Court concludes that the appraisal expenses, when Law 5/2019, of March 15, regulating real estate credit contracts, does not apply to the bank and not to the consumer. This resolution only affects loans signed before that 2019 rule, since the Real Estate Credit Law approved two years ago does establish that the appraisal must be paid by the borrower, that is, the consumer.

With this ruling, all the consequences of the nullity of the clauses that impose the costs of formalizing the mortgage loan on consumers are resolved by the Civil Chamber.

Right to restitution
This doctrine assumes that consumers are entitled to the restitution of all expenses paid for the registration, administration and appraisal of the property, as well as half of the notarial expenses.

Only the Tax on Documented Legal Acts, in which the tax regulations establish that the main taxable person is the borrower, is borne by consumers. The magistrates have studied an appeal against a resolution of the Provincial Court of Cáceres in a lawsuit with Liberbank.

After hearing the sentence, the legal co-director of the consumer portal "the plaintiff", Almudena Velázquez, considers that the resolution is "consistent" with the provisions of the Court of Justice of the European Union. In fact, the Supreme Court is based on the affirmation of a judgment of the CJEU, which concludes that this clause now analyzed is “abusive”.

The higher court considers that the appraisal should be part of the management costs and, therefore, and based on jurisprudence, the lender, that is, the banks, must take charge. “The so-called appraisal expenses are the appraisal cost of the property on which the mortgage guarantee is intended to be constituted. Although the appraisal does not constitute, properly, a requirement of validity of the mortgage, the law requires for the direct judicial execution of the mortgage, among other requirements that “in the deed of incorporation of the mortgage the price at which the interested parties appraise the property or mortgaged property, to serve as a typology in the auction, which may not be less, in any case, than 75 percent of the value indicated in the appraisal ”.

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