Many consumers have refused to claim their mortgage costs because their bank told them that «It was too late.». The Supreme Court has just dismantled that argument. If you paid in full on your day, you would notice, register or manage your mortgage loan, you may still be in time to get that money back. We explain to you what the Supreme has decided and how to know if you can claim.
What we're talking about: the expenditure clause
For years, mortgages included a expenditure clause that forced the client to assume everyone the costs of setting up the loan: notice, registration of the property, management and, where appropriate, valuation. The courts, following the EU Court of Justice, have stated that this clause abusivebecause it imposed on the consumer costs which were in large part the bank.
The result is clear: who paid these amounts for an abusive clause has the right to be returned. The doubt, in practice, has always been another: how long can it be claimed?
The problem: the «trap» of the prescription
This is where the bank raised its defense. The banks were claiming that the action to claim was prescribed, arguing that the deadline began to run with the first media judgments on mortgage expenditure (notably that of December 2015). According to that thesis, any «average consumer» I should have known, since then, that the clause was abusive, and those who did not claim in time would have lost their right.
It is what many offices have called the «prescription trap»: use the public impact of a sentence to close the door to individual complaints.
What the Supreme Court has decided
The Supreme has rejected that argument. The reference doctrine is the Judgment of the plenary session of the First Chamber 857 / 2024 of 14 Juneconfirmed and reinforced by the STS 312 / 2026 of 25 February. The rule they set is as follows:
The time limit for claiming reimbursement does not begin to count on the date of signature of the mortgage, not for the simple publication of notorious judgments, but for the the final date of the judgment declaring the clause null and void.
With one exception: make it the bank who proves that consumer concrete He knew, at an earlier date, that the clause was abusive. And that burden of proof lies with the entity, not the client. It is not enough for him to invoke that «It was on the news.».
The Supreme even qualifies as paradoxical that the bank claims legal certainty when it has been for more than a decade without taking on the consequences of a clause that it imposed.
A key nuance: nullity does not prescribe
Two actions are often confused:
- Action to declare null and void the expenditure clause is imprescriptible: can be exercised at any time.
- Action to Get the money back. paid (refund) does have time limit, but —according to the previous doctrine— that period does not start until the invalidity is declared, except for the exceptional case already seen.
In practice, this reopens the door to thousands of claims that were believed lost, especially in old mortgages whose expenses were never claimed.
What expenses can you recover
In general, the following are eligible:
- The whole expenditure Administration.
- The whole expenditure registration of property.
- The costs of assessment.
- Half expenditure I'd notice. (according to the distribution set by case law).
The of documented legal acts has a more restrictive and own treatment, which should be analysed on a case-by-case basis.
What to do if you think you can claim
- Locate your writing and invoices of notary, registration and management.
- Check if you already claimed in his day or if you never did.
- Don't give up on the passing of time: with the current doctrine, which has passed years since the first sentences does not, in itself, mean that your action is prescribed.
- Appreciates a previous claim to the bank, also useful to document the moment you took effective knowledge.
Each case requires individual analysis —the date, documentation and what the bank may or may not prove are determining—but the scenario for the consumer is now clearly more favourable.
Frequently asked questions
Can I still claim my mortgage expenses more than ten years ago? Most likely. According to the Supreme doctrine, the time limit does not begin with the signature or the media sentences, but with the firmness of the sentence that nullifies the clause, unless the bank proves that you knew its abuse before.
How much money can I get back? It depends on your case, but they usually recover the hierarchy, the record, the valuation and half of the notary.
What if the bank says it's already prescribed? It is he who must prove that you, in particular, knew the abuse of the clause before. It is not enough for him to claim that the subject was noted in the media.
Can the clause be annulled at any time? Yeah. The action to declare the abusive clause null and void is imprescriptible.
This article is informative and does not constitute legal advice. The viability and amount of a mortgage claim depend on the circumstances of each contract. In LEYNVER ABOGATES we analyze your writing, calculate what you could recover and claim in front of the bank. Contact us for a case assessment.
