Are the contractual terms that oblige the consumer to pay the Notary and Land Registry fees in case of entering into a mortgage loan contract considered abusive?

Abstract

This paper studies a contractual term that imposes the payment of the Notary and Land Registry fees to the consumer or borrower in case of contracting a mortgage loan. This is a typical baking sector «take it or leave it» clause, that therefore, cannot be negotiated. This research aims to identify if this type of clause should be considered abusive or unfair. For this purpose, we have studied not only the substantive law applicable, especially, notary fees and banking transparency regulations, but also the most recent Spanish case law. Our conclusion is that this type of contractual terms is neither intrinsically abu- sive, or non-transparent. However, it is possible that in certain circumstances, if the term contains ambiguous wording, lacks specificity or is too general, it could not override the incorporation control provided by Articles 5 and 7 of the Ley de Condiciones Generales de Contratación (General Contracting Terms Act) and the article 80.1 a) Texto Refundido de la Ley General para la defensa de los consumidores y usuarios (Consolidated Drafting of the General Law on the Defence of Cosnumers and Users, TRLCU). Finally, if the loan contract would have been concluded after 13 of June of 2014, the consumer could claim for reimbursement of the Notary and Land Registry fees paid to a lender when getting a mortgage, as established by article 60 TRLCU.