Floor Clauses in Spain: How to Claim Back Your Overpaid Money

🇪🇸 Read the original in Spanish

If you signed a mortgage in Spain before 2013, it is highly likely that you are overpaying every month without knowing it due to the inclusion of a cláusula suelo (floor clause). This minimum limit on interest rates, frequently camouflaged in the small print of mortgage contracts, has prevented millions of families from benefiting from the historic drops in the Euribor. Fortunately, Spanish and EU case law has opened the door for consumers to recover every single cent unduly charged by banking entities. In this guide prepared by the experts at AbogadoAI, we explain in detail, with legal rigour and in simple terms, how to identify this clause, how to calculate what you are owed, and what the exact steps are to claim successfully.

What is a floor clause and why is it illegal in most cases?

A cláusula suelo (floor clause) is a provision included in variable-rate mortgage loan contracts. This clause establishes a minimum limit on the interest that the client will pay to the bank, regardless of whether the benchmark index (usually the Euribor) falls below that percentage.

For example, if a mortgage has an interest rate of Euribor + 1%, and the Euribor is trading at 0.5%, the real interest rate should be 1.5%. However, if the contract contains a floor clause of 3%, the client will be forced to pay that 3%, losing the benefit of the financial market's decline.

The lack of transparency criterion

It is essential to clarify that the floor clause is not illegal in itself, but rather due to the lack of transparency with which financial institutions marketed it. The Spanish Tribunal Supremo (Supreme Court), in its historic ruling of 8 May 2013, determined that these clauses are null and void if the bank did not inform the consumer in a clear, understandable, and prominent manner about the existence and real economic impact of said limit.

Subsequently, the Court of Justice of the European Union (CJEU), in its ruling of 21 December 2016, corrected the doctrine of the Spanish Tribunal Supremo (which only allowed the recovery of money from May 2013 onwards) and ruled in favour of full retroactivity. This means that consumers have the right to recover all the overpaid money since the signing of the mortgage, with no backward time limit.

The regulatory framework: Which laws protect the consumer?

Claiming back a floor clause is based on a solid legislative framework that protects the weaker party to the contract: the consumer. The key rules of our legal system are:

• Real Decreto Legislativo 1/2007, de 16 de noviembre, por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios (LGDCU): Article 82 of this General Law for the Defence of Consumers and Users defines what is considered an unfair clause (one that, contrary to the requirements of good faith, causes a significant imbalance in the rights and obligations of the parties to the detriment of the consumer). Article 83 determines that these clauses are null and void de jure, establishing that they shall be deemed as not having been included.
• Código Civil español (Spanish Civil Code): Article 1303 of the Civil Code is the basis for demanding the return of the money. This article establishes that, once an obligation is declared null and void, the contracting parties must restore to each other the things that were the subject of the contract, along with their fruits, and the price with interest. In this case, the bank must return the overpaid money plus the legal interest generated since each undue payment.
• Ley 7/1998, de 13 de abril, sobre Condiciones Generales de la Contratación: This law on General Contracting Conditions regulates the incorporation and transparency controls that standard-form contracts (such as mortgages deeded by banks) must pass.
• Real Decreto-ley 1/2017, de 20 de enero, de medidas urgentes de protección de consumidores en materia de cláusulas suelo: A specific Royal Decree-Law created by the Spanish Government to establish a prior, fast, and free out-of-court dispute resolution procedure between consumers and credit institutions.

Concrete examples: How much money can be recovered?

To understand the real financial impact of this clause, we analyse two practical cases with different financial profiles.

Example 1: The case of Carlos (Average mortgage)

Carlos signed a mortgage in January 2008 for an amount of €150,000 with a term of 30 years, with an interest rate of Euribor + 1.00% and a floor clause of 3.50%.

During the years when the Euribor plummeted (especially between 2009 and 2020), Carlos continued to pay a fixed interest rate of 3.50% instead of the real interest rate that corresponded to him (which at many times fell below 1.50%).

• Monthly instalment paid with floor clause: Approx. €673.
• Monthly instalment he should have paid: Approx. €510 (in periods with very low Euribor).
• Average monthly difference: €163 overpaid.
• Total to claim (accumulated over 10 years of floor application): €19,560 of principal, to which must be added approximately €3,500 in accumulated legal interest. The total amount the bank must return to Carlos is around €23,060.

Example 2: The case of Elena and Pierre (Higher value mortgage)

Elena and Pierre (an expat resident in Spain) bought a villa on the Costa del Sol in March 2006. They requested a mortgage loan of €300,000 with a term of 25 years with a differential of Euribor + 0.75% and a floor clause of 3.00%.

• Average monthly difference overcharged: €280.
• Total overpaid amortised capital: By applying the floor, the bank calculated the instalments by allocating less money to amortising the principal capital of the mortgage.
• Total to claim: After carrying out the expert calculation, the excess amount charged rises to €34,200 of principal, plus about €6,100 in legal interest. The total sum to recover is €40,300, in addition to recalculating downwards the outstanding debt of their mortgage.

Practical step-by-step guide to claiming back overpaid money

If you suspect that your mortgage contains this abusive limit, you must follow a structured procedure to maximise your chances of success and minimise waiting times.

Step 1: Locate and review the mortgage deed

Look for the mortgage loan deed (escritura de constitución de préstamo hipotecario), not the property purchase deed. You must carefully read the clause usually identified as "Tercera Bis" (Third Bis) or "Límites a la variación del tipo de interés" (Limits on interest rate variation). Look for terms such as "el tipo de interés nominal anual mínimo aplicable no podrá ser inferior al..." (the minimum applicable nominal annual interest rate may not be lower than...) or "límite a la variabilidad" (limit on variability).

Step 2: Calculate the exact amount to claim

It is not advisable to claim blindly. It is necessary to perform a calculation comparing what you have paid month by month with what you should have paid if the real variable interest rate had been applied without the floor. You can use specialised online calculation tools or obtain the support of an expert economic report.

Step 3: Submit the out-of-court claim (RDL 1/2017)

You must address a formal written complaint to the Servicio de Atención al Cliente (SAC - Customer Service Department) of your banking entity, relying on the procedure of Royal Decree-Law 1/2017. The bank is obliged by law to receive the request, analyse it, and give you an answer within a maximum period of 3 months.

• If the bank accepts the claim, it will present you with a proposal to return the money (in cash or by reducing the outstanding debt of the mortgage).
• If the bank rejects it or does not reply within 3 months, the out-of-court route will be considered concluded without agreement.

Step 4: The judicial route (Civil lawsuit)

If the bank rejects the refund or offers you an amount lower than what you are entitled to, the next step is to file a lawsuit before the Juzgados de Primera Instancia (Courts of First Instance) specialised in unfair terms in your province. For this procedure, you will need the assistance of an abogado (lawyer) and a procurador (court procurator). In the vast majority of cases, if the lack of transparency is obvious, the banks are ordered to pay the court costs, meaning the process could end up being free of charge for you.

Key deadlines, amounts and figures you should know

To prevent your rights from expiring or making calculation errors, memorise these fundamental figures and deadlines:

• €0: The cost of the out-of-court procedure regulated by Royal Decree-Law 1/2017. The bank cannot charge you any commission or expense for processing your claim through this channel.
• 3 months: The maximum legal period that the banking entity has to resolve the out-of-court claim, make a refund offer, and put the money at your disposal.
• Imprescriptible: The action to request the absolute nullity of an unfair clause due to lack of transparency does not expire. You can claim even if the mortgage is already fully paid off and cancelled (according to the consolidated criteria of the Tribunal Supremo and the CJEU).
• 3% to 4.5%: The usual percentage range where floor clauses that have been declared null and void in Spanish courts are situated.
• Legal interest rate: The bank must return the overcharged money increased by the interés legal del dinero (legal interest rate) corresponding to each year in which the overcharge was applied (percentages that historically range between 3% and 4% annually).

Mistakes to avoid when claiming

• Accepting trap agreements from the bank without advice: Many entities offer to remove the floor in exchange for signing a document where the client waives the right to take future legal action or to claim back money from the past. The Tribunal Supremo has declared many of these agreements null and void if they do not meet strict transparency requirements, but it is best to avoid signing them in the first place.
• Confusing the nullity of the clause with the cancellation of the mortgage: Even if you finished paying off your mortgage years ago, you still have the right to claim back what you overpaid. Do not let the bank tell you that "the contract has already expired".
• Signing a novation that changes the mortgage to a fixed rate without reviewing the history: If the bank proposes switching your mortgage to a fixed rate to "solve" the floor problem, make sure they first return everything overcharged in the past under the variable rate with the floor.
• Not claiming late-payment and legal interest: The claim must not only include the overcharged principal capital, but also the interest that this money has generated in your favour over the years. This is a considerable sum that banks usually "forget" in their initial proposals.

Frequently Asked Questions (FAQ)

Can I claim the floor clause if I have already sold the house or cancelled the mortgage?

Yes, absolutely. The Tribunal Supremo and the CJEU have determined that the absolute nullity of an unfair clause does not expire due to the fact that the contract has ended. If you overpaid during the life of the loan, you have the right to recover that money even if the mortgage was cancelled years ago.

What happens if my mortgage was subrogated from a developer?

You can also claim. If you bought a new-build property and subrogated (subrogación) into the mortgage that the property developer had contracted with the bank, and said mortgage included a floor clause about which you were not properly informed, the clause is equally null and void and the bank must return the overpaid amounts since you took over the loan.

Do I have the right to claim if I am self-employed or bought the property through a company?

The protection of the General Law for the Defence of Consumers and Users applies mainly to natural persons acting as consumers (that is, outside their commercial or professional activity). However, the Tribunal Supremo has admitted the nullity of floor clauses in contracts with non-consumers (autónomos [self-employed] or SMEs) if it is proven that the bank abused its dominant position and the incorporation control of the Civil Code and the General Contracting Conditions Law was not passed.

How does the refund of the floor clause affect my tax return (IRPF)?

The money returned to you by the bank in cash for the overpaid instalments is not taxed as a capital gain. However, if you applied the deduction for the acquisition of a primary residence in your IRPF (personal income tax) returns for the non-prescribed years, you must regularise your tax situation by returning the part of the deduction that you over-applied, but without penalties or late-payment interest.

In summary

• The floor clause is null and void if the bank did not inform you of its existence and operation in a transparent and clear manner before signing.
• You have the right to recover 100% of what was overpaid since the signing of the contract, plus the corresponding legal interest.
• The action to claim the nullity of the floor clause does not expire, even if the mortgage has already been cancelled or the property has been sold.
• The bank has a period of 3 months to resolve the free out-of-court claim under Royal Decree-Law 1/2017.
• Avoid signing any document or waiver of legal action proposed by the bank without it being reviewed by an independent expert.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.