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Repealed the article of the mortgage law that could leave a buyer without a home, but with a mortgage

Jun 16, 2021 | Last news, Last news

The Government has repealed Article 28 of the Mortgage Law which, from time immemorial, had become a toothache for real estate agencies, since established a Two-year period in which the sale of a home of the deceased without forced heirs had no effect in the Land Registry. This meant that if someone died without children and their home was inherited by their siblings or indirect heirs , the subsequent sale of that home would not really be of the buyer until this period had elapsed because an illegitimate child could appear in the course of those two years. As of September 3 of this year, the buyer of an inherited home will be able to rest easy.

With the outbreak of the pandemic, many buyers have shown interest in buying an inherited home affected by this article 28 of the Mortgage Law which has been repealed. But many of these operations have not gone ahead due to the risk they entail for the buyer, since, if the property were claimed by the forced heir in the two years after the purchase, the buyer could not refuse to return it. But in return, the buyer should continue to pay the mortgage. As of September 3 of this year this article will disappear, as has been published in the BOE .

And banks have always been reluctant when granting mortgages in this type of case. “The possibility that a person with a better right in the inheritance would appear who could claim it It existed if the person who inherited and intended to sell was not a forced heir of the deceased owner, that is, his son, father or husband, which represented a risk for the buyer who would not have fully guaranteed its acquisition during the following two years to said death. The consequence of this legal limitation, which temporarily suspended the principle of registration public faith in such cases, was the refusal of many banks to grant mortgages due to fear of losing the mortgage guarantee “, says Salvador Salcedo, partner at Ático Jurídico .

With this repeal, which comes into force in September, according to the Secretary General and AMADEI lawyer, Jesús Manuel Martínez Caja , the limitation of having to wait those two years from the date of date of death of the deceased to validate the registration of the non-compulsory heirs, giving way to the sale of all the real estate product derived from the inheritances of non-compulsory heirs.

From AMADEI they emphasize that the repeal of this precept is “very opportune in these times battered by the pandemic, in which inheritances have multiplied exponentially and a good part of the inherited properties go out to the sale market”.

In this way, article 28 of the Mortgage Law has been repealed, since the assumptions that this article is eventually called to protect are very residual compared to the damage it causes in the succession of collaterals and strangers and the disturbance traffic, generating uneconomic situations.

What taxes must be paid after selling an inherited apartment

The sale of this type of property is considered a capital gain , taxed in the personal income tax (IRPF) and in the year in which the sale of the property is made. home. The profit is taxed in the taxable base of the savings, so it has to be declared that way in the income statement. You also have to pay the municipal capital gain.

Therefore, in the event of the sale of an inherited home, the capital gain generated must be declared, taking as a reference the value of the property for the purposes of Inheritance and Gift Tax, plus expenses inherent to the acquisition as its value.

In addition, for the sale of an inherited home you have to pay the municipal capital gains tax , and who is obliged to do so is the seller. However, in the event of a sale at a loss, the seller is exempt from paying this tax, as stated by the Constitutional Court.

For more information you can visit the College of Property Managers website of Barcelona-Lleida.

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