LA LIMITACIÓN IMPERATIVA DE RESPONSABILIDAD POR LAS DEUDAS HIPOTECARIAS A LA FINCA HIPOTECADA: UNA IDEA SEDUCTORA PERO DESACONSEJABLE (COMISIÓN PARA LA REFORMA DEL SISTEMA HIPOTECARIO, MADRID, 20 DE JULIO DE 2011).INTERVENCION EN EL CONGRESO DE LOS DIPUTADOS: (COMISIÓN DE VIVIENDA, MADRID, 29 DE OCTUBRE DE 2008). MEDIDAS PARA FACILITAR A LOS CIUDADANOS EL ACCESO A UNA VIVIENDA DIGNA.

Abstract

The first article contains the speech the author delivered to the Spanish Congress of Deputies’ Housing Committee on 29 October 2008. The speech addresses the topic «Measures to facilitate citizens’ access to decent housing». It takes a careful look at how the housing policy model of the last fifty years has outlived its usefulness and what role the property registration system plays in the mortgage market and the property market. Lastly, it makes a number of pro-posals that could facilitate citizens’ access to decent housing by encouraging alternatives to ownership— such as leasing and ownership of fixtures on an estate without ownership of the underlying estate—and by taking measures in connection with over-indebtedness and measures aimed at helping home buyers recover sums delivered on account in the event of breach of contract by the developer. The second article contains the speech the author delivered to the Congress of Deputies’ Subcommittee for the Analysis and Potential Reform of the Spanish Mortgage System on 20 July 2011. Its title was «The Imperative Limitation of Mortgage Debt Liability to the Mortgaged Property: A Seductive But Unadvisable Idea». In the speech, the author takes a stand against reforming the Spanish mortgage system to enable what is termed «dación en pago» (surrender in lieu of payment) to be accepted as the borrower’s right. Surrender in lieu of payment would enable the borrower to surrender the mortgaged property to the lender in full settlement of the mortgage debt. The author argues that the general rule in developed countries is unlimited personal liability, save in eleven states of the United States; that such a reform would make credit more expensive in general and would make it inaccessible for lower-income borrowers; and that, if surrender in lieu of payment were applied to contracts already in force, it would endanger the financial system, because it would hamper financing (already difficult to find under the current circumstances), transferring the ultimate costs to the taxpayer. Instead, the author proposes other measures, such as a procedural reform to enable interest on late payment to be treated as penalty clauses within the foreclosure procedure (including the special foreclosure procedure); the same treatment in tax-related affairs for surrenders in lieu of payment as for mortgage foreclosures; reform of article 12 of the Mortgage Act along the lines stated in the Supreme Court’s ruling of 16 December 2009 and the Tarragona Provincial Appellate Court’s ruling of 1 April 2011, repealing the wording under Act 41/2007; optimization of the antichresis as a security right over real property; establishment of a single appraisal value at the time when the mortgage is granted, this value to be found by an independent appraisal authority; prohibition against banks and other duly authorized financial institutions’ giving loans or credits at negative real interest rates; and regulation of over-indebtedness situations, following European guidelines on the matter.