The judgment of the Court of Justice of the European Union of 21 December 2016 makes it possible not only to claim reimbursement of amounts paid as a result of floor clauses (cláusula suelo) and disproportionate default interest, but also opens the door to claiming reimbursement of all amounts and fees paid by the borrower as a result of unfair contractual clauses contained in their mortgage agreement.
These are by no means insignificant amounts. Based on our experience, the average amount of these recoverable costs is approximately €3,500, although the invalidity of disproportionate contractual clauses is not limited to the so-called floor clause (Cláusula Suelo).
The invalidity also extends to all expenses paid by the borrower that should have been borne by the lender. In summary, all mortgage-related costs that were unlawfully paid by the borrower may be claimed back.
In our discussions with clients, the following questions arise particularly frequently:
Can I always claim reimbursement of the Cláusula Suelo?
The first step is to analyse the notarised purchase or mortgage agreement. If it contains the so-called “Cláusula Suelo”, it must be determined whether this clause can be considered unfair. In practice, many borrowers trust their bank and request reimbursement without having the opportunity to verify the information provided by the bank themselves. The advice and assistance of a lawyer or expert is often crucial in this respect.
What if the borrower is a company?
Legal entities and, in particular, self-employed individuals may in many cases also be considered consumers, meaning that they may likewise be entitled to claim reimbursement on the basis of unfair contractual clauses. Even where the borrower cannot be classified as a consumer, it may still be possible to base the claim on the legislation governing general terms and conditions, which may also render this type of contractual clause invalid.
What if I have already repaid the mortgage in full?
Based on an analysis of various judgments at first instance, we can confirm that even in this case you may claim reimbursement of the additional costs arising from the clauses contained in your mortgage agreement. In this case, the possibility of bringing a claim does not become time-barred, as these clauses are considered null and void from the outset.
What if my bank has already refunded the floor clause?
In this case, the first step is to verify whether your bank has actually refunded the full amount that was unlawfully charged. The fact that the bank provides you with a new calculation does not guarantee that the calculation is correct. Furthermore, it should be noted that the bank may only have refunded the costs relating to the Cláusula Suelo. Any other costs arising from disproportionate or unfair clauses may still be claimed.
Which other clauses can I challenge?
Although it is necessary to analyse the mortgage agreement as a whole on a case-by-case basis, the following clauses may generally be challenged:
- Floor clause (cláusula suelo)
- Default interest clause (interés de demora)
- Clauses relating to mortgage costs:
- Stamp Duty (Actos Jurídicos Documentados)
- Property valuation costs (tasación)
- Notary fees and Land Registry fees (notario, registro)
- Arrangement fees (comisión de apertura)
As an example, we can consider a mortgage of €300,000, where only the costs are being claimed and neither possible default interest nor the floor clause is included:
| Item | Amount |
| Floor clause (see note) | See note* |
| Default interest (see note) | See note* |
| Stamp Duty | €3,606.00 |
| Land Registry fees | €466.60 |
| Notary fees | €1,217.00 |
| Administrative processing fees | €100.00 |
| Property valuation costs | €550.00 |
| Arrangement fee | €1,100.00 |
| Total | €6,090.70 |
Note*: This example relates to a specific case in which neither the “Cláusula Suelo” nor default interest was claimed.
Once the claim pursuant to Law 1/2017 of 20 January has been submitted to the bank, most banks respond within three months, although some attempt to avoid subsequent legal proceedings by offering a settlement.
Other banks, however, either fail to respond or deny any entitlement to reimbursement in their written replies. In such cases, the only remaining option is to bring legal proceedings before the competent court at the borrower’s place of residence. These proceedings frequently result in the banks being ordered to reimburse the costs unlawfully charged and to pay the legal costs of the proceedings.
Our law firm will be pleased to assist you in analysing your individual circumstances, handling the necessary administrative procedures on your behalf and assisting you with the filing of the corresponding tax returns. Should you be interested in our services or have any specific questions regarding this matter, please feel free to contact us by email or telephone in German.
Author:
J. Francisco Santos Postigo
Lawyer
CEO, Partner, Director Labour Law
info@sspartners.es
Tel: (+34) 951 12 13 06
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