Mortgage Expenses in Spain: How to Claim Your Money Back

🇪🇸 Read the original in Spanish

If you signed a mortgage in Spain before 2019, it is highly likely that you paid a series of set-up costs out of your own pocket that, by law, should have been paid by the bank. After years of litigation and now-consolidated case law from the Spanish Supreme Court and the Court of Justice of the European Union (CJEU), consumers have an absolute right to recover the money overcharged due to unfair clauses. In this detailed guide from AbogadoAI, we explain with legal precision and simplicity exactly which concepts you can claim, the legal framework that protects you, the existing deadlines, and the step-by-step procedure to get your money back.

The Origin of the Conflict: Why Are These Expenses Void?

For decades, Spanish banks systematically imposed a clause in mortgage loan contracts that forced the client to assume all the costs of setting up the mortgage. This practice was carried out through adhesion contracts, where the consumer had no bargaining power.

The legal basis that allows you to claim the refund of these amounts is set out in the Spanish Código Civil (Civil Code) and in consumer protection legislation. Specifically, *Article 1303 of the Código Civil** establishes the principle of reciprocity and mutual restitution of benefits following the declaration of nullity of an obligation. When the expenses clause is declared null and void for being unfair (in accordance with the Ley General para la Defensa de los Consumidores y Usuarios* / General Law for the Defence of Consumers and Users), it is as if said clause had never existed, forcing the bank to return the unduly paid amounts.

It is important to point out that, although this matter traditionally falls within the scope of banking and property law, it has a direct impact on the housing market in Spain. However, it should be clarified that regulations such as the Ley de Arrendamientos Urbanos (LAU / Urban Leasing Act) or the Ley 12/2023 por el derecho a la vivienda (Housing Right Act) regulate the rental market and residential access, meaning that the strict regulatory framework for claiming mortgage expenses is governed by the Código Civil, the Ley de Enjuiciamiento Civil (LEC / Civil Procedure Act) for judicial claims, and the Ley de Contratos de Crédito Inmobiliario (Real Estate Credit Contracts Act) of 2019 for loans signed after its entry into force.

Which Mortgage Expenses Can You Claim Exactly?

The jurisprudence of the Supreme Court has defined with absolute clarity which concepts were imposed in an abusive manner and in what percentage they must be returned by the financial institution. If your mortgage is prior to 16 June 2019 (the date on which the new Ley de Contratos de Crédito Inmobiliario entered into force), you can claim a refund for the following items:

1. Land Registry Fees (100%)

The fee of the registradores de la propiedad (land registrars) must be borne entirely by the bank. The registration of the mortgage guarantee is a right established in favour of the financial institution to guarantee the collection of the loan, which is why the Supreme Court ruled that the bank must pay 100% of this cost.

2. Gestoría Fees (100%)

The gestoría (administrative agency) that processes the tax settlement and the registration of the deed in the land registry is usually imposed by the bank to ensure that the process is carried out correctly. As there was no rule attributing this expense to the client, the court ruled that the bank must return 100% of the gestoría fees.

3. Property Valuation Fees (100%)

To grant the mortgage, the bank requires the property to be valued by an approved valuation company. The Supreme Court, in its judgment of January 2021, unified its doctrine by pointing out that, unless the 2019 law applies, the bank must refund 100% of the valuation (tasación) cost to the consumer, provided that the corresponding invoice is presented.

4. Notary Fees (50%)

The drafting and authorisation of the public mortgage deed interests both parties: the consumer to obtain the money and the bank to have an executive title. Therefore, the cost of the Notary's fees is distributed at 50% between the bank and the client. You can claim exactly half of what you paid for this concept.

Which Concepts CANNOT Be Claimed?

It is vital to know which items are excluded from the claim to avoid unfeasible lawsuits:

• *Stamp Duty (Impuesto de Actos Jurídicos Documentados - AJD):* The taxpayer liable for this tax, according to the tax legislation in force during the property bubble years and until the end of 2018, was the borrower (the client). Therefore, the Supreme Court ruled that the AJD cannot be claimed from the bank for mortgages prior to November 2018.
• Mortgage cancellation expenses: These expenses correspond to the client, as they are the party interested in releasing the charge on their property once the debt has been extinguished.
• *Opening commission (comisión de apertura):* This can only be claimed if it is proven that it did not meet transparency and clarity controls, but it does not fall under the automatic refund of set-up expenses.

Deadlines to Claim: When Does the Right Expire?

This has been one of the most debated issues in Spanish and European courts. The Court of Justice of the European Union (CJEU) ruled in its judgment of 25 January 2024 that the limitation period (which in Spain is 5 years for personal actions according to Article 1964 of the Código Civil) cannot start to run until the consumer has effective knowledge of the unfair nature of the clause and of their rights.

This means that the deadline to claim remains open for the vast majority of mortgage holders, as the mere passage of time since the signing of the contract does not extinguish the right if the bank did not transparently inform them of the nullity of the clause. Do not let time slip away, as the claim channel is fully active.

Practical Case: A Real Example of an Expense Refund

To understand the economic impact of this claim, we will analyse the case of two home buyers in Spain.

Example 1: The average mortgage of Carlos and Sofía

In 2016, Carlos and Sofía signed a mortgage of €150,000 to purchase an apartment in Valencia. When formalising the operation at the bank's gestoría, they were handed a global invoice of expenses that broke down the following amounts:

• Notary: €800
• Land Registry: €350
• Gestoría: €400
• Property Valuation: €380
• Total paid by the couple: €1,930 (excluding taxes)

Applying the rules set by Spanish jurisprudence, Carlos and Sofía can claim the following amounts from the bank:

• 50% of Notary: €400
• 100% of Land Registry: €350
• 100% of Gestoría: €400
• 100% of Valuation: €380
• Total to recover: €1,530

In addition, to this amount of €1,530, we must add the legal interest accrued since the date they made each of the payments (in 2016), which can increase the final figure to be recovered by approximately an additional 30% or 40%, placing the real refund close to €2,000.

Practical Procedure: How to Claim Step-by-Step

If you wish to recover your money, you must follow a structured process that maximises your chances of success without incurring unnecessary costs.

``` [Step 1: Gather Invoices] ➔ [Step 2: Out-of-Court Claim] ➔ [Step 3: Lawsuit (if applicable)] ```

Step 1: Locate the documentation

You cannot claim without proof. You must look for your mortgage deed and, most importantly, the original invoices for the expenses. You need:

1. The Notary's invoice.
2. The Land Registrar's invoice.
3. The invoice from the gestoría that processed the file.
4. The invoice from the valuation company.

Note: If you cannot find the invoices, you can request them from the gestoría that handled the case, the corresponding notary, or the land registry.

Step 2: Submit an out-of-court claim to the Customer Service Department (Servicio de Atención al Cliente - SAC)

You must draft a formal letter addressed to the Servicio de Atención al Cliente of your bank (or the entity that has absorbed your old bank). In this letter you must:

• Identify yourself with your personal details and your mortgage loan number.
• Cite the nullity of the expenses clause for being unfair, basing it on the jurisprudence of the Supreme Court and the CJEU.
• Attach a copy of the invoices.
• Request the breakdown of the amounts to be returned together with the legal interest.

The bank has a period of 2 months to respond to this request.

Step 3: The judicial route (Civil lawsuit)

If the bank rejects the claim, offers an amount lower than what you are entitled to, or simply does not respond within the 2-month period, you must go to court.

Through the Ley de Enjuiciamiento Civil (LEC), an ordinary lawsuit will be filed requesting the nullity of the clause and the restitution of the amounts. As the case law is so well consolidated, the probability of success is close to 100%, and the bank is usually ordered to pay the court costs, meaning the process could cost you absolutely nothing.

Mistakes You Must Avoid When Claiming

• Accepting the bank's first offer without checking the calculations: Financial institutions frequently offer quick out-of-court settlements for amounts much lower than the real ones, demanding in return that you sign an express waiver to take future legal action.
• Failing to provide original invoices or proof of payment: The bank will systematically reject any claim that is not backed by detailed invoices from the professionals (notary, registrar, gestor, and valuer). The mortgage deed on its own does not serve to prove the payment of the expenses.
• Believing you cannot claim if you already cancelled the mortgage or sold the house: It is a common mistake to think that if the mortgage is already paid off or the house is sold, there is no right to claim. The nullity of an unfair clause is imprescriptible, meaning you can claim even if the loan is no longer active.
• Confusing the mortgage with the property purchase: The expenses of the purchase deed (purchase notary, purchase gestoría, etc.) correspond by law to the buyer and seller as agreed. Only the expenses strictly associated with the mortgage loan deed can be claimed.

Frequently Asked Questions (FAQ)

Can I claim if my bank no longer exists because it was absorbed by another?

Yes, of course. Bank mergers and acquisitions entail the subrogation of all the rights and obligations of the absorbed entity. For example, if you signed with Bankia, you must direct your claim to CaixaBank; if it was with Banco Popular, you must claim from Banco Santander.

What happens if I signed my mortgage after June 2019?

For mortgages set up after 16 June 2019, the Ley de Contratos de Crédito Inmobiliario applies strictly. This law already distributes the expenses by default as follows: the bank pays the gestoría, registry, notary, and its authorised copy; the client pays for the valuation and their copies of the deed. If the bank charged you anything different from this legal distribution, you can claim it.

How long does the bank usually take to return the money?

If the bank accepts the claim through the amicable (out-of-court) route, the refund is usually made effective within a period of 30 to 90 days. If you are forced to go to court, the process will depend on how busy the court in your province is, and could take between 8 months and 2 years.

Do I have to declare the returned money on my Spanish tax return (IRPF)?

The money returned to you by the bank corresponding to the set-up expenses is not considered a capital gain, as it is the return of money you should never have paid. However, the late-payment interest paid to you by the bank must be taxed under the savings tax base. Furthermore, if you previously applied the deduction for the purchase of a primary residence in your IRPF (personal income tax) for these expenses, you must regularise your tax situation for the non-prescribed tax years.

Summary

• You can claim 100% of the registry, gestoría, and valuation expenses, and 50% of the notary expenses of your mortgage prior to June 2019.
• The Stamp Duty (AJD) is not claimable for the vast majority of old mortgages.
• The channel to claim remains fully open thanks to the latest CJEU rulings on limitation periods.
• It is essential to gather the original invoices for each concept for the claim to be accepted for processing.
• Even if you have cancelled, paid off, or sold your home, your right to recover your money remains intact.

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.