Royal Decree-Law 6/2012 on Urgent Measures for the Protection of Indigent Mortgage Debtors

Royal Decree-Law 6/2012, of March 9, on Urgent Measures for the Protection of Indigent Mortgage Debtors.

Head of State

"BOE" No. 60, of March 10, 2012
Reference: BOE-A-2012-3394

INDEX

Preamble ................................................................ 3
CHAPTER I. General Provisions ............................................... 4
Article 1. Purpose. ....................................................... 4
Article 2. Scope of Application. .............................................. 4
CHAPTER II. Measures for the Restructuring of Real Estate Mortgage Debt .................. 4
Article 3. Definition of the Exclusion Threshold....................................... 4
Article 3 bis. Guarantors, Sureties, and Non-Debtor Mortgagors. ........................... 6
Article 4. Moderation of Default Interest Rates. .................................. 7
Article 5. Adherence to the Code of Good Practices. .................................. 7
Article 6. Monitoring Compliance with the Code of Good Practices. ................... 8
Article 7. Consequences of Improper Application by the Debtor of Measures for the
Restructuring of Real Estate Mortgage Debt. ............................... 9
CHAPTER III. Fiscal Measures.................................................... 9
Article 8. Modification of the Consolidated Text of the Law on Property Transfer Tax and
Documented Legal Acts approved by Royal Legislative Decree 1/1993, of September 24.
.......................................................... 9
Article 9. Modification of the Consolidated Text of the Law Regulating Local Governments approved
by Royal Legislative Decree 2/2004, of March 5................................ 9
Article 10. Modification of Law 35/2006, of November 28, on Personal Income Tax and Partial
Modification of Laws on Corporate Tax, Non-Resident Income Tax, and Wealth Tax.
................................... 10

Article 11. Bonification of Tariff Rights. .................................. 10
CHAPTER IV. Execution Procedure ............................................ 10
Article 12. Extrajudicial Execution Procedure. ................................. 10
CHAPTER V. Access to Rental Housing for Persons Affected by Evictions and Subject to
Flexibilization Measures for Mortgage Executions ......................................... 11
Article 13. Preference for Access to Aid for Tenants. ....................... 11
Article 14. Persons Subject to Mortgage Flexibilization Measures. ...................... 11
CHAPTER VI. Sanctioning Regime ................................................ 11
Article 15. Sanctioning Regime. ............................................. 11
Additional Provisions ...................................................... 12
Sole Additional Provision. Special Regime for the Application of Law 29/1994, of November 24, on
Urban Leases. ................................................. 12
Final Provisions ......................................................... 12
First Final Provision. Modification of Royal Decree-Law 11/2010, of July 9, on Governing Bodies
and Other Aspects of the Legal Regime of Savings Banks. ................... 12
Second Final Provision. Competence Titles. .................................. 12
Third Final Provision. Regulatory Development of Extrajudicial Execution. ................ 12
Fourth Final Provision. Entry into Force. ........................................ 12
ANNEX. Code of Good Practices for the Viable Restructuring of Debts Secured by a Mortgage
on the Primary Residence........................................................ 13
OFFICIAL STATE GAZETTE

CONSOLIDATED TEXT
Last modification: November 23, 2022

Spain has been undergoing a profound economic crisis for four years, during which measures aimed at protecting the mortgage debtor have been adopted, which, however, have sometimes proven insufficient to mitigate the harshest effects that continue to fall on debtors without resources. The reality in which many families are immersed is dramatic; as a result of their situation of unemployment or absence of economic activity, prolonged over time, they have ceased to be able to meet their obligations arising from loans or mortgage credits contracted for the acquisition of their home.

This circumstance and the consequent initiation of mortgage execution processes are determining that a segment of the population is deprived of its home and faces very serious problems for its sustenance under dignified conditions. The Government considers, therefore, that it cannot delay any longer the adoption of measures that allow solutions to this socioeconomic situation in consonance with the right to enjoy a dignified and adequate home, enshrined in Article 47 of the Spanish Constitution, which must guide the action of public authorities in accordance with
Article 53.3 thereof. This is also required by the mandate included in Article
9.2 of the Fundamental Law.

To this end, this royal decree-law establishes various mechanisms conducive to allowing the restructuring of the mortgage debt of those suffering extraordinary difficulties in meeting their payments, as well as the flexibilization of the execution of the real guarantee. These measures are implemented, however, without deteriorating the fundamental elements of the mortgage guarantee, on the security and solvency of which our mortgage system has historically been based. Most of the measures will apply to those situated in the so-called exclusion threshold. In this sense, it has been determined that beneficiaries are persons who are in a professional and patrimonial situation that prevents them from meeting their mortgage obligations and elementary subsistence needs. This threshold is also sensitive to the economic situation of other members of the family unit, as well as of the holders of personal or real guarantees, if any exist. Precautionary measures are also adopted to prevent fraudulent or abusive admission to the proposed measures.

The protection model designed revolves around the elaboration of a code of good practices to which credit institutions and other entities that, professionally, carry out the activity of granting loans or mortgage credits may voluntarily adhere, and whose monitoring by them will be supervised by a control commission integrated by representatives of the Ministry of Economy and Competitiveness, Bank of Spain, National Securities Market Commission, and Spanish Mortgage Association.

With the application of the measures contained in the aforementioned Code, which appears as an Annex to this royal decree-law, the involvement of the Spanish financial sector in the effort required to alleviate the difficult economic and social situation of many families is facilitated and promoted.

The aforementioned Code includes three phases of action. The first, aimed at procuring the viable restructuring of mortgage debt, through the application to loans or credits of a grace period on capital amortization and a reduction of the interest rate during four years and the extension of the total amortization term. Secondly, if the previous restructuring is insufficient, entities may, if appropriate, and at their discretion, offer debtors a write-off on the total amount of their debt. And, finally, if neither of the two previous measures succeeds in reducing the mortgage burden of the debtors to limits acceptable for their financial viability, they may request, and the entities must accept, the surrender of the property as a definitive means of discharging the debt. In this last case, families may remain in their home for a period of two years paying an affordable rent.

OFFICIAL STATE GAZETTE

Likewise, the default interest rates applicable to mortgage credit or loan contracts are moderated. This reduction aims to decrease the financial burden generated in cases of non-payment by protected debtors.

On the other hand, the group of beneficiaries of the tenant aid provided for in Royal Decree 2066/2008, of December 12, regulating the Housing and Rehabilitation Plan 2009-2011, is expanded to include persons who have been subject to a judicial eviction resolution as a result of mortgage execution processes, as well as those who sign lease contracts as a result of the application of the measures contained in the aforementioned Code of Good Practices.

The aforementioned measures are complemented by other legal modifications of a procedural and fiscal nature. In procedural matters, the extrajudicial execution procedure is simplified and clarified by providing for a single auction and a minimum adjudication price, and referring to subsequent regulatory development the regulation of the extrajudicial sale, enabling, among other measures, online auctions. In fiscal matters, public deeds formalizing contractual novations carried out under the auspices of the Code of Good Practices will be exempt from the graduated fee for notarial documents of the mode of Documented Legal Acts.

The adoption of the measures contemplated in this royal decree-law is essential in order to protect a social group in a situation of extraordinary vulnerability in the economic context generated by the crisis. The effects of unemployment on Spanish families and their social situation have produced a deterioration, on which public intervention cannot be delayed any longer. It is therefore that the adoption of such measures requires resorting to the procedure of the royal decree-law, fulfilling the requirements of Article 86 of the Spanish Constitution regarding its extraordinary and urgent necessity.

In virtue thereof, making use of the authorization contained in Article 86 of the Spanish Constitution, upon proposal of the Minister of Economy and Competitiveness, and prior deliberation of the Council of Ministers in its meeting of March 9, 2012, I decree:

CHAPTER I
General Provisions

Article 1. Purpose.
This royal decree-law aims to establish measures conducive to procuring the restructuring of the mortgage debt of those suffering extraordinary difficulties in meeting their payments, as well as mechanisms for flexibilizing mortgage execution procedures.

Article 2. Scope of Application.
The measures provided for in this Royal Decree-Law shall apply to loan or credit contracts secured by a real estate mortgage where the debtor is situated within the exclusion threshold and which are in force on the date of entry into force or which are subsequently signed.

The measures provided for in this Royal Decree-Law shall also apply to guarantors and sureties of the principal debtor, regarding their primary residence and under the same conditions as those established for the mortgage debtor.

CHAPTER II
Measures for the Restructuring of Real Estate Mortgage Debt

Article 3. Definition of the Exclusion Threshold.

1. Those debtors of a credit or loan secured by a mortgage on their primary residence shall be considered situated within the exclusion threshold when all of the following circumstances concur in them:

OFFICIAL STATE GAZETTE

a) That the total income of the members of the family unit does not exceed the limit of three times the annual Public Indicator of Multiple Effects Income of fourteen payments. For these purposes, the family unit shall be understood as composed of the debtor, their legally unmarried spouse or registered partner, and children, regardless of their age, who reside in the home, including those linked by a relationship of guardianship, custody, or foster care.

The limit provided in the previous paragraph shall be four times the annual Public Indicator of Multiple Effects Income of fourteen payments in the event that any member of the family unit has a declared disability greater than 33 percent, a situation of dependency, or an illness that credibly and permanently incapacitates them from carrying out a labor activity, or five times said indicator, in the case that a mortgage debtor is a person with cerebral palsy, mental illness, or intellectual disability, with a recognized disability degree equal to or greater than 33 percent, or a person with physical or sensory disability, with a recognized disability degree equal to or greater than 65 percent, as well as in cases of serious illness that credibly incapacitates, the person or their caregiver, from carrying out a labor activity.

b) That, in the four years prior to the time of the request, the family unit has suffered a significant alteration of its economic circumstances, in terms of housing access effort, or that special vulnerability family circumstances have arisen during said period.

For these purposes, a significant alteration of economic circumstances shall be understood to have occurred when the burden of the mortgage on family income has increased.

Likewise, the following are understood to be in a circumstance of special family vulnerability:

1. Large families, in accordance with current legislation.
2. Single-parent family units with dependent children.
3. Family units in which a minor resides.
4. Family units in which any of its members has a declared disability greater than 33 percent, a situation of dependency, or an illness that credibly and permanently incapacitates them from carrying out a labor activity.
5. Family units in which one or more persons reside in the same home who are related to the holder of the mortgage or their spouse by kinship up to the third degree of consanguinity or affinity, and who are in a personal situation of disability, dependency, or serious illness that credibly and temporarily or permanently incapacitates them from carrying out a labor activity.
6. Family units in which there is a victim of gender-based violence or of trafficking or sexual exploitation.
7. Debtors over sixty years of age, even if they do not meet the requirements to be considered a family unit as provided in letter a) of this number.

c) That the mortgage installment exceeds 50 percent of the net income received by the total members of the family unit. This percentage shall be 40 percent when any of said members is a person in whom the circumstances provided for in the second paragraph of letter a) concur.

For the purposes of letters a) and b) above, it shall be considered that they have a disability degree equal to or greater than 33 percent social security pensioners who have recognized a permanent disability pension in the degree of total, absolute, or great invalidity, and pensioners of passive classes who have recognized a retirement or withdrawal pension for permanent disability for service or uselessness.

2. For the application of the complementary and substitutive measures of mortgage execution referred to in paragraphs 2 and 3 of the Annex, it is additionally necessary that the following requirements are met.

OFFICIAL STATE GAZETTE

a) That the total members of the family unit lack any other assets or patrimonial rights sufficient to meet the debt.

b) That it is a credit or loan secured by a mortgage on the only home owned by the debtor or debtors and granted for the acquisition of said home.

c) That it is a credit or loan that lacks other guarantees, real or personal, or, in the case that the latter exist, that it lacks other assets or patrimonial rights sufficient to meet the debt.

d) In the case that there are co-debtors who are not part of the family unit, they must be included in the circumstances a), b), and c) above.

3. The concurrence of the circumstances referred to in paragraph 1 shall be accredited by the debtor to the creditor entity through the presentation of the following documents:

a) Receipt of income by members of the family unit:

1. Income certificate, and if applicable, certificate regarding the submission of the Wealth Tax, issued by the State Tax Administration Agency or the competent body of the autonomous community, if applicable, relating to the last tax year.
2. Last three received pay slips.
3. Certificate issued by the entity managing benefits, showing the monthly amount received as unemployment benefits or subsidies.
4. Certificate accrediting social salaries, minimum insertion incomes, minimum vital income, or analogous social assistance aid granted by the State, the autonomous communities, and local entities.
5. In the case of self-employed workers, if they were receiving the cessation of activity benefit, the certificate issued by the managing body showing the monthly amount received.

b) Number of persons inhabiting the home:

1. Family book or document accrediting registration as a registered partner.
2. Certificate of registration of persons registered in the home, referencing the time of presentation of the accrediting documents and the previous six months.
3. Declaration of disability, dependency, or permanent incapacity to carry out a labor activity.

c) Ownership of assets:

1. Ownership certificates issued by the Property Registry relating to each member of the family unit.
2. Deeds of sale of the home and constitution of the mortgage guarantee and other justifying documents, if applicable, of the rest of the real or personal guarantees constituted, if any.

d) Responsible declaration by the debtor or debtors regarding compliance with the requirements required to be considered situated within the exclusion threshold according to the model approved by the commission constituted for the monitoring of compliance with the Code of Good Practices.

In the event that the creditor entity has data or accrediting documentation on any of the points referred to in the letters above, the debtor shall be exempt from accrediting them to the entity.

Likewise, in order to accredit that they meet the eligibility conditions, the debtor may authorize the adhering subject, expressly and in writing, to obtain information directly from the State Tax Administration Agency, Social Security Managing Entities, and Property and Commercial Registries.

Article 3 bis. Guarantors, Sureties, and Non-Debtor Mortgagors.
Guarantors, sureties, and non-debtor mortgagors who are situated within the exclusion threshold may demand that the entity exhaust the assets of the principal debtor, without prejudice to the application to the latter, if appropriate, of the measures provided for in the Code of Good Practices, before claiming the guaranteed debt from them, even if they had expressly waived the benefit of excussion in the contract.

Article 4. Moderation of Default Interest Rates.

1. In all credit or loan contracts secured by a real estate mortgage where the debtor is situated within the exclusion threshold, the default interest applicable from the moment the debtor requests the entity to apply any of the measures of the code of good practices and accredits to the entity that they are in said circumstance, shall be, at most, the result of adding to the remuneratory interest agreed in the loan 2 percent on the outstanding capital of the loan.

2. This moderation of interest shall not apply to debtors or contracts other than those regulated in this Royal Decree-Law.

Article 5. Adherence to the Code of Good Practices.

1. The Code of Good Practices included in the Annex shall be of voluntary adherence by credit institutions or any other entity that, professionally, carries out the activity of granting loans or mortgage credits.

2. The application of the Code of Good Practices shall extend to mortgages constituted as guarantee for loans or credits, when the acquisition price of the mortgaged real estate does not exceed by 20 percent that which would result from multiplying the extension of the real estate, by the average price per square meter for free housing yielded by the Housing Price Index elaborated by the Ministry of Development for the year of acquisition of the real estate and the province in which said property is located, with an absolute limit of 300,000 euros. Real estate acquired before the year 1995 shall take as the reference average price that relating to the year 1995.

However, only mortgages constituted as guarantee for loans or credits granted, when the acquisition price of the mortgaged real estate does not exceed that which would result from multiplying the extension of the real estate, by the average price per square meter for free housing yielded by the Housing Price Index elaborated by the Ministry of Development for the year of acquisition of the real estate and the province in which said property is located, with an absolute limit of 250,000 euros, may adhere to the measures provided for in paragraph 3 of the Code. Real estate acquired before the year 1995 shall take as the reference average price that relating to the year 1995.

3. Entities shall communicate their adherence to the General Secretariat of the Treasury and Financial Policy.

4. From the adherence of the credit institution, and once the debtor has accredited that they are situated within the exclusion threshold, the provisions of the Code of Good Practices shall be mandatory. Without prejudice to the foregoing, either party may compel the other to formalize in a public deed the novation of the contract resulting from the application of the provisions contained in the Code of Good Practices. The costs of said formalization shall be borne by the party requesting it.

5. The novation of the contract shall have the effects provided for in Article 4.3 of Law 2/1994, of March 30, on Subrogation and Modification of Mortgage Loans, with respect to loans and credits not