COVID-19: Moratorium measures in Spain

Lawyou — Wednesday, 24 de february de 2021
María Losada López-Rúa - Lawyou Partner

The Coronavirus pandemic has not only been a serious health crisis, but is also fully affecting the economy of many Spanish households.

Likewise, the banking and credit entities that are part of the Spanish Banking Association (AEB) and the CECA Banking Association have reached a sector agreement that offers extensions and moratoriums beyond those regulated by the Government, with less demanding requirements for their concession. .

Content table

Let’s go on to analyze each one of them.

LEGAL MORATORY

The legal moratorium applies to both contracts with a mortgage guarantee and contracts that personal that do not have a mortgage guarantee and leasing

Contracts with a mortgage guarantee

You can request a moratorium on the mortgage loan installment if they are met the following requirements:

Affected persons: may apply for both individuals who have subscribed mortgage loans, such as guarantors, guarantors and the non-debtor mortgager.

Type of property: the mortgage must fall on the habitual residence, on properties related to economic activity developed by businessmen and professionals, and also secondary dwellings for which the rent has not been paid for the moratorium on rentals.

Requirements : the debtor is required to be in a of vulnerability, for which all the requirements indicated below must be met, cumulatively:

1 · Professional situation: the mortgage debtor has become unemployed (interpreted in the sense of broad: ERTE, suspension or reduction of working hours), or if you are self-employed, you must have suffered a substantial loss of income or a substantial drop in sales (of at least 40%).

2 · The total income of the family unit cannot exceed, in the month prior to the request for the moratorium, the limit of three times the IPREM. The IPREM in 2020 is € 537.84 per month, so the limit would amount to € 1,613.50. This threshold is modifiable upwards if there are children, elderly, disabled, single-parent family:

If there are children, it increases by € 53.78 for each child. In the case of a single parent family, € 80.60. If one of the members of the family unit is over 65, € 53.78. If a member has a disability greater than 33% :, it is increased to four times IPREM (€ 2,151.36). If one of them has a mental illness or a disability equal to or greater than 33%, it is increased to five times (€ 2,689.20).

3 · The mortgage payment, plus expenses and basic supplies, It must be greater than or equal to 35% of net income.

  • Expenses or supplies are understood to be the following: electricity, gas, oil for heating, running water, fixed telecommunication services and mobile and contributions to the owner community. Therefore, expenses such as food are excluded.

4 · Having suffered a significant alteration of economic circumstances, as a consequence of the health emergency, in terms of effort to access housing. This occurs when the effort represented by the mortgage burden on family income has been multiplied by at least 1.3.

Example: a family unit made up of 4 people, whose income before the Covid crisis- 19 amounted to € 2,500, of which they paid € 710 in mortgage payments. To determine the effort, we must divide the amount of the mortgage payment by the income of the family unit: € 710 / € 2,500 = 0.284. To know the effort that would place that family in meeting the requirement, we must multiply the rate of 0.284 by 1.3: 0.284 x 1.3 = 0.3692. Currently, after the start of the health emergency, the income of the family unit has been reduced to € 1,800, while the mortgage payment remains the same. We determine the current effort: € 710 / € 1,800 = 0.39. Since the current effort (0.39) is higher than the reference rate of 0.3692, in this case the requirement would be fulfilled.

Deadlines to request it: up to 45 days after the alarm state has ended.

Duration: 3 months

Some studies determine that only 10% of people Those who request it may be beneficiaries of the mortgage moratorium, since the rest would not meet the four requirements or would be a percentage of people who would be discarded because, although they meet all the requirements, the situation of vulnerability predates the Covid-19 crisis.

Personal contracts

With the modifications introduced by RD 11/2020 and RD 19/2020, the legal moratorium also applies to personal loans , consumer loans and leasign.

People (with the exception of the non-debtor mortgagee, who does not exist in this type of loan) and the requirements to understand that is in a case of vulnerability are the same, with the exception of the third requirement, that of the computation of the mortgage payment, since in this case, the installments of all the loans are included, as well as the amount of the rent, if any.

It is possible to request both moratoriums, the mortgage and the personal loan. If you are entitled to a mortgage moratorium, you will always be entitled to a personal loan moratorium as well. However, you may be entitled to a moratorium on personal loans and not on mortgages.

Application to guarantors and guarantors

Guarantors and guarantors also They may request the moratorium if they meet the four requirements mentioned above. In any case, it can only be claimed when the debtor has not requested the moratorium, since the bond is accessory to the main contract (art. 1826 CC).

Likewise, the guarantors can demand that the entity exhausts the assets of the main debtor , that is, they become subsidiary guarantors even if the joint character had been agreed or the exclusion benefit had been waived, since this agreement or resignation will have no effect.

Effects of the granting of the moratorium

The moratorium is not “granted” by the lender but is automatic, since it does not require an agreement between the parties or novation any contractual agreement: we are faced with an “ automatic suspension ” of the contract +. The application in the case of personal loans is from the request (art. 24.2) while in the case of mortgages it is within 15 days from the request. It therefore seems that in the first case, interest ceases to accrue from the same day of the request and in the second on a date determined by the bank within the following 15 days. However , the effect is the same in both moratoriums: the payment of the installment cannot be demanded and no interest rate for late payment will accrue. 

Due to the fact that the payment of the loan is suspended, the anticipated maturity cannot be declared (arts. 14 and 15 RDL 8/2020 and art. 25 RDL 11/2020). The latter means that the moratorium months are excluded from the default periods established by the Law (12 months, 15 months) to justify the early expiration.

The RDL clarifies that “ the date of the due date agreed in the contract will be extended, as a result of the suspension, for the duration of the suspension, without any modification of the rest of the agreed conditions “. That is to say, the loan will last 3 months longer than the initially agreed term.

Despite the automatic and non-agreed effect of the novation, it is required that it be formalized in a public deed and registered in the Property Registry , without in any case the modification of the loan and its term altering the rank of the mortgage (article 13.3 RDL 8/2020). But it is clarified that this is not a condition for its application, since it will be formalized once the state of alarm ends, in addition to the fact that the expenses will be reduced (art. 16 ter RDL 8/2020) and that they will be exempt from ITPAJD.

We understand that this is a provision designed to avoid execution problems for the lender, as it must be carried out in accordance with the registered title. Therefore, it can be argued that this formalization may be unilateral by the Bank, since the effects of the moratorium are legally determined and favor the debtor.

The period to request it is 30 days from the end of the state of alarm.

SECTORIAL MORATORY

We believe it is important to make a special mention of the sectoral moratorium, since it is an opportunity to obtain extensions and moratoriums to those debtors who do not comply with the demanding requirements of the legal moratorium approved by the Government.

As we said before, the credit institutions that are part of the AEB and the CECA have reached a sector agreement that allows Those economically affected by Covid-19 request a postponement of up to 12 months in the amortization of the capital of the mortgage for their first home, and up to six months in consumer loans and leasing. During this period, clients will only pay interest and the installments that are not paid will be redistributed among all pending ones, or the term of the loan will be increased.

Affected contracts

It will be applied to loan or credit contracts with mortgage guarantee and leasing, owned by individuals (including self-employed), formalized before March 14, 2020. The loan or credit does not You may submit breaches of more than two unpaid installments on the date of declaration of the State of Alarm 03/14/2020.

.

What it consists of: in the postponement of the part of the installment related to the loan capital during the term of the moratorium (maximum 12 months), or a financially equivalent solution. Although the part of the installment related to the capital is not required, the entire interest payment on the outstanding principal must be paid during the period of the moratorium. This does not mean the cancellation of the debt, since once the moratorium period ends, the operation will be reactivated. The moratorium may produce, where appropriate, the effect of extending the duration of the loan by the number of months that the deferral lasts.

Requirement of economic vulnerability

In order to qualify for this sectoral moratorium, at least one of the following assumptions must be met:

1 · That the natural person holder (including the self-employed) becomes unemployed due to the impact of the COVID-19. In the case of being an entrepreneur or professional, it will be taken into account if you suffer a substantial loss of your income, or a drop of at least 40% of your sales.

2 ″ That, as a result of the emergency health, the total of the mortgage installments of the loans or credits affected by the moratorium plus the expenses and basic supplies is greater than or equal to 35% of the net income of the family unit.

3 · That, As a result of the health emergency, the family unit has suffered a significant alteration of its economic circumstances, causing the mortgage burden (understood as the sum of the mortgage payments of the real estate affected by the measure) on the family income It has been multiplied by at least 1.3.

Term: The sectoral moratorium can be requested until June 29, 2020, without prejudice to the extensions that may be authorized the European Banking Authority.

Yes, it is important to mention that p In order to benefit from the sectoral moratorium, it is an essential requirement to first request the legal moratorium. Once the benefits granted by the latter have been enjoyed and its term expired (currently 3 months), the sectoral moratorium may be accepted, up to a term that, added to the legal moratorium, does not exceed the maximum foreseen ( currently 12 months).

If, having requested the legal moratorium, it could not be possible to take advantage of it because it did not meet the requirements, it is possible to benefit from the sectoral moratorium (since the vulnerability requirements economic are more lax), from the effective date of the Request and for the maximum period indicated (12 months).

The procedure to request it is the same as in the legal one.

< p> In both, legal and conventional moratorium, they can be requested at the bank, accompanying the necessary documentation, which goes from the certificate proving being unemployed or in ERTE, issued by the managing entity or, where appropriate, of the cessation of activity issued by the AEA, the census of inhabitants is, Family Book, certificate of ownership of assets, certificate of disability, etc. It should be noted that if any of the necessary documentation is lacking, a responsible declaration signed by the person requesting it in substitution can be provided, however when possible it will have to be provided.

AGREED MORATORIUM

Finally, refer to the moratorium that the holder and his entity may agree to by mutual agreement because the requirements of the two previous moratoriums are not met, to protection of the freedom of agreements between the parties included in art. 1.255 of the Civil Code.

Many banks have gone further, and are voluntarily offering extensions and moratoriums to debtors in good faith that are higher than the legal and sectorial ones, since they are fully aware that we are facing an extraordinary situation, so it is necessary to adapt the contracts to this exceptionality.

Do not hesitate to contact us to tell us about your case through our email: atencionalcliente@lawyoulegal.com or, if you prefer, you can also call us at 602 226 895. Or you can leave us your details here.

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