Updated on Friday, 3 September 2021 – 02:01
This Friday, September 3, article 28 of the Mortgage Law disappears, an article that in practice has frustrated not a few operations about to be initialed
Poster announcing the sale of homes in Madrid. Article 28 Housing or the law that can leave the buyer without a home but with a mortgage in the face of an unexpected heir
Future home buyers will have one less reason to worry from today. This Friday, September 3, article 28 of the Mortgage Law disappears, an article that in practice has frustrated not a few operations about to be signed.
What this article says is that there is a within two years in which the assets of a deceased person without forced heirs will have no effect in the Registry. That is, if someone dies without children and their home passes to their siblings or other indirect heirs, it will not really belong to them until 24 months have passed. In the hypothetical case that an illegitimate child appears, a handwritten will is found or an unknown direct heir reappears, said heir will have the right to claim. And win. Hence the nickname of the law, the Cuban Law, since it was established in the war in Cuba so that putative sons could reach the Peninsula and claim what belonged to them.
In recent months, many people interested in acquiring a home have encountered this rule when formalizing their operations, so the Government decided to put an expiration date on it. The day has arrived and as of September 3 the article disappears, thanks to Law 8/2021, of June 2, by which the civil and procedural legislation is reformed to support people with disabilities in the exercise of their legal capacity.
The norm published in the BOE states that “article 28 of the Mortgage Law is eliminated, since the assumptions that this article is eventually called to protect are very residual compared to the damage it causes in the succession of collateral and strangers and the traffic disturbance, generating uneconomic situations “.
Risks for the buyer
Most of the buyers who found themselves with article 28 used to cancel the operation due to the risk that was involved for them, since if in that period of 2 years a direct heir appeared and claimed the property, they could not refuse to return it. Yes, the buyer kept the mortgage payment.
This risk not only threw back potential buyers, but the banks themselves, aware that they could be left without the guarantee that backed the mortgages granted, hence many entities refused to provide financing for these cases.
The few buyers who dared to buy in this situation, opted for alternative formulas such as paying a rent with right to purchase for two years and, once that period has elapsed, execute the acquisition. Or, assume that the property could be paralyzed or that the price demanded could be below the market.
Now all these conditions disappear, both for future operations and those that are in force, since the law is retroactive. ANDhe heir to a home becomes directly its owner, regardless of the degree of kinship with the deceased, and you can carry out its sale without any type of burden that limits it.
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