The tacit legal mortgage in the sale and purchase of real estate

In any purchase and sale transaction, checks must be made regarding the tax and cadastral status of the property, in order to know the existence or not of obligations, as well as to delimit the responsibilities incurred by the parties involved in the transaction. In this sense, we can raise some questions: in case of acquiring the property of a real estate with debts, should I be liable for them, or are they the responsibility of the previous owner, what are the established collection mechanisms?

The legislation that regulates the different procedures and guarantees for the collection of these taxes is Law 58/2003, General Tax Law, hereinafter LGT; together with Royal Legislative Decree 2/2004, of March 5, which regulates the Consolidated Text of the Law of Local Treasuries. In this regard, we highlight two main figures: on the one hand, the tacit legal mortgage, and on the other hand, the affectation.

In relation to the first of these, it is regulated in Article 78 of the LGT and is a preferential right of collection held by the State, the Autonomous Communities and Local Entities with respect to debts accrued and unpaid derived from taxes directly related to a property, i.e., a preference for collection from the public administration.

On the other hand, the assignment of assets, regulated in Article 79 of the aforementioned law, refers to the transfer of tax debts in the transfer of real estate.

Once the change of ownership of the property has taken place, the new owners are responsible for the fulfillment of the corresponding obligation. The assignment of a property allows the debts linked to it to be transferred in the sale and purchase.

Now, knowing the definition of both figures, when does each of them operate and what are the differences?

With respect to the affectation, the principal must have been declared in default in order to claim the debt and the corresponding declaration of liability of the acquirer must be made, which implies the exclusion of interest for late payment and the surcharge, the debt being claimable until the statute of limitations expires.

However, with the tacit legal mortgage, there should be no declaration of default or liability; this figure operating since the transfer of the property has been made with respect to the new owner. For this, the requirement that must be fulfilled is the elapse of the term of payment in voluntary period, as well as to have initiated proceedings for enforcement against the same, not having paid the debt also in executive period; being able, in this way, to claim the current year and the immediately previous one only.

Finally, with respect to IBI, what should be taken into account?

The IBI is the most common example of tacit legal mortgage. It must be taken into account the possibility that the new owner, i.e. the buyer, must comply with the tax obligation derived from the previous non-payment of IBI in the current year or the year immediately prior to the operation of this figure. That is to say, in case of intervening in a real estate transaction, this possibility must be known by whoever obtains the ownership of a property.

For all these reasons, at Chapapría Navarro & Asociados we believe it is convenient to emphasize the essential need to check the fiscal salubrity of those properties subject to a purchase and sale transaction to which we may be a party, focusing on the importance of the legal perspective in this sector.

Article written by Violeta Guillén