Royal Decree 1289 / 1991, Of 2 August, Whereby Amending Certain Articles Of The Real Decree 685/1982, March 17, Of Regulation Of The Mortgage Market.

Original Language Title: Real Decreto 1289/1991, de 2 de agosto, por el que se modifican determinados artículos del Real Decreto 685/1982, de 17 de marzo, de regulación del mercado hipotecario.

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Law 2/1981 of 25 March, regulating the market mortgage, developed by Royal Decree 685/1982, and subsequent provisions that complement it, represented an initiative which aims to promote the creation of a broad mortgage market, by removing legal and administrative barriers to do so, as one of the instruments that they had to allow a more effective policy on housing construction and urban planning, establishing a complete structure for the financing of such activities through the issuance by credit institutions of mortgage securities that would have guaranteed mortgages.

The experience gained in the operation of that market has been shown the desirability of reviewing certain principles set out in the regulatory legislation on it, which are too rigid and whose flexibility is possible to approach without degradation of the guarantees which must preside over the active and passive operations with mortgage.

Such purpose fits within the framework of the second directive of the Council of the EEC of 15 December 1989, for the coordination of the laws, regulations and administrative provisions relating to the access to the activity of credit institutions and its exercise (89/646/EEC).

To that end, it would seem appropriate to address in this partial review the regulations currently in force, in order to eliminate provisions that hinder the expansion of the mortgage market, anticipating formulas that allow that Spanish banks are in conditions to cope with this new situation.

Schematically the reform affects the following: introducing specific measures to promote the broadcast of cedulas mortgage.

The obligation of reinvestment in mortgage loans made emissions product shall be deleted.

It is reduced and, if necessary, removed the requirement of a certain percentage of mortgage loans in order to cast ballots.

The issuance of certificates on the basis of acquired mortgage holdings becomes feasible.

Expands the boundaries of the Computable real estate construction loans.

The figure of mortgage holdings, power is to underline that through them are made to participate in mortgage loans of a credit institution, with the favourable consequences for the same, for the purposes of the coefficient of box and own resources.

Virtue, in accordance with the opinion delivered by the Council of State, on a proposal from the Minister of economy and finance, after deliberation by the Council of Ministers at its meeting of August 2, 1991, available: single article.

The 2 articles, one; 26, one-two; 30, one; 32, three-four; 35; 37, three; 39; 40, uno-cinco; 43, two and three; 44, 46, one; 53; 59, one and two; 60, two-three - four; 61; 62, one-two - three; 64; 65, one-two; 66; 67, three; 69; 72, one-two; 81; 82, one; second transitional provision and additional provision of Royal Decree 685/1982, of March 17, will be drawn up subsequently designated as.

TRANSITIONAL provision the adaptation of institutions specializing in pricing provisions in article 39.4 must be made within a maximum period of one year from the entry into force of this Royal Decree.

PROVISION REPEALING the entry into force of this Royal Decree shall be repealed the following provisions: articles 33, three; 63, four; 82, three, second subparagraph, and 82, four of the Real Decree 685/1982, March 17, of regulation of the mortgage market, with the modifications introduced by the Royal Decree 1623 / 1985, of 26 August.

The third and fourth provision of the order of 7 December 1984.

The provision eighth, second paragraph, of the order of 22 June 1982.

ARTICLES modified article 2. Enumeration.

One. The financial institutions that participate in the mortgage market are: a) the Mortgage Bank of Spain and remaining State public capital credit institutions.

(b) the private banks).

(c) savings banks and the Spanish Confederation of savings banks.

d) La Caja Postal de Ahorros.

(e) the financing entities regulated by Royal Decree 896/1977, of 28 March.

f) the cooperative credit institutions.

(g) the mortgage companies which comply with the requirements of this Royal Decree.

Article 26. Loan limits.

One. The secured loan may not exceed the 70 per 100 of the appraised value of the mortgaged, except for the financing of the construction, rehabilitation or purchase of housing, which can reach 80 by 100 of that value.

Two. Mortgage loans that they initially exceed these percentages may serve coverage to the issuing mortgage bonds and when, as a result experienced by its principal amortization or modification of the value of the goods on the market, previous corresponding pricing, the amount does not exceed these percentages in relation to the appraised value, initial or revised of the property mortgaged.

Article 30. Damage insurance.

One. Goods on which constitute the mortgage must have a damage insurance appropriate to the nature of the collateral, and that the sum insured agrees with the appraised value of the insured property excluded by nature not securable items.

Article 32. Excluded or restricted credits.

3. Whatever the amount of the credit in the section above, for purposes of coverage, the computable limit determined by the sum of the following amounts: 50 by 100 of the appraised value of the site.

Fifty per 100 of the value of the works, excluding the impact of the solar.

Four. The amounts resulting from the application of the above can only compute, for purposes of coverage, as soon as their sum does not exceed 20 per 100 of the total amount of capital of the loans affected to an issuance of bonds or portfolio that determines the limit of the issuance of identity cards.

Article 35. Criteria for pricing.

To determine the value of the property mortgaged for purposes of what prevented by law 2/1981, will choose the lesser of that resulting from the application of the criteria established in the specific regulations for valuation of assets in the mortgage market for each of them, which shall be approved by the Minister of economy and finance , following a report of the official credit Institute.

In those goods to be under some sort of public administrative provisions limiting their profitability or selling price be assigned, as a maximum, the value or which of these limitations fall off, without prejudice to what the effect is set to subsidized housing legislation.

Article 37. Appraisal report.

3. The technical appraisal report as well as the certificate where it can synthesize it, will have to be necessarily signed by an architect, technical architect or technical architect, in the case of urban farms, lots and real estate built up with residential destination and, in other cases, by an engineer or a technical engineer from the corresponding specialty depending on the nature of the object of the valuation. This report will not have to be endorsed by the respective Association and will expire six months from its date.

Article 39. Requirements.

Specialized entities referred to in the preceding article shall meet the following requirements: one. Take the form of joint-stock company, domiciled in the national territory.

Two. Limit its objects to the valuation of all types of goods.

3. Having a paid-in capital of 25,000,000 pesetas, in his 50 by 100, as a minimum.

Four. Having a minimum number of 10 professionals with ability to perform pricing, already belong to the same staff, because they are hired as free professionals.

5. Be registered in the official register of the Bank of Spain.

Article 40. Official registration.

One. The founders of the appraisal entities, prior to the beginning of the exercise of its activities, will request registration in the corresponding register, for which purpose will present at the Bank the following documents to the Bank of Spain: a) the application for registration.

(b) the draft of the statutes of the entity.

(c) the relationship of the components of the Board of Directors and directors of the entity.

(d) the relationship of faculty practitioners, with justification of the issued securities that allow the exercise of pricing. Variations shall be communicated later.

5. The inspection regime of the entities or pricing services will be in accordance with what stated in an order approved by the Minister of economy and finance, in application of the provisions in article 7. (, two, c), law 2/1981 of 25 March.

Inspection of compliance with appraisal standards and the functioning of institutions or services pricing control corresponds to the Bank of Spain, which penalized the violations committed in accordance with the provisions of the applicable legislation.

Article 43. Kinds of titles.

Two. The mortgage may be issued by the Mortgage Bank of Spain and remaining credit entities of State public Capital, private banks, savings banks, the Spanish Confederation of savings banks, the Postal savings, credit unions and mortgage companies. The latter, in order to cast these values shall maintain 75 per 100 of its loan portfolio invested in mortgage loans which regulates the law of the mortgage market.
3. The mortgage bonds may be issued by entities to that referred to in the previous number, and in addition, financing entities, always complying with the conditions and requirements that are demanded in this Royal Decree.

Article 44. Mortgage.

1. the mortgage shall at least contain the following data: one. Specific designation and indication of his regulatory law.

Two. The expression if they are registered, to order or bearer and, in his case, the name of the holder or the person to whose order they are waged. In the absence of express qualification they shall be issued to carrier.

3. Their nominal value and the premiums, if they have them.

Four. The deadline and form of repayment of capital, expressing, in its case, draw periods.

5. Interest accrued and their due dates.

6. The warning be subject to draw on undetermined date, even ones that have fixed repayment term, in the cases provided for in this Decree.

7. The option allowing as to the form of payment, article 54 of Royal Decree.

8. The expression of whether the card is unique or if it belongs to a series and, in the latter case, the number of the title and the number or letter of the series, if there are several.

9. The date of the issuance and the corresponding administrative authorisations.

10. The name and address of CA and, where applicable, its registration in the register data.

Eleven. The seal of the issuing entity and the signature of, at least, one of its advisers or proxies, which may be printed, complying with legal requirements, when the certificates are issued in series.

2. when the mortgage are represented through book-entry shall be entered in any case in the public document referred to in article 6 of law 24/1988, of July 24, the stock market, those of the data mentioned in number 1 above that are compatible with this form of representation.

Article 46. General rules.

One. The realization of emissions certificates and mortgage bonds shall be adjusted, without prejudice to the provisions of this Royal Decree, to regulatory of the stock market to the Covenants, bylaws or rules of CAs, and agreements of its competent bodies, provided that they do not set out in that.

Article 53. Person entitled.

One. In certificates issued to the bearer, the CA will recognize its holder as the owner of the same.

Two. In the nominative or issued the order, the amount of the capital and that of the interest or premiums are paid, prior presentation of the titles or coupons matching fork proving to be the nominated person nominative title or, in the issued the order, one to whose order was RID.

3. If the nominee or to order title had been subject of any transmission, the responsible entity must pay the holder stating to be the last assignee nominative title or, in the RID to the order, the last endorsee formally legitimized by the string of endorsements or justifiable be legitimate successor of one another or of persons mentioned in paragraph 2 of this article.

Four. The CA will take reason for transmissions of titles to that referred to in the previous number, if proceedings for such purpose, but prior decision of reason of the transmission or previous transmissions won't be necessary condition for payment.

5. In any case the debtor entity will be responsible for the validity of transmissions or the authenticity of the signatures appearing in them.

6. In the case of values represented by annotations into account it will be what emerges from the general rules governing them.

Article 59. Of the certificates.

One. The volume of the mortgage issued by an entity and not expired shall not exceed 90 per 100 of a computation base formed by the sum of the unamortized capital of all mortgage loans in the portfolio of the entity, suitable to serve as coverage. Be computed as such credits capital mortgage holdings acquired by the entity that are kept in their portfolio and are equally suitable.

Two. If the entity had issued bonds or mortgage holdings, will be excluded from the basis of computation referred to in the preceding paragraph the amount full any credit hit bonds and the portion owned of which had been the subject of participation.

Article 60. Reset the proportion.

Two. Still, if the limit is passed on by increases in depreciation of the affected loans, or any other cause, the CA will need to reset the balance through the following actions: to) cash or deposit of public funds in the Bank of Spain.

(b) acquisition of certificates and bonds on the market as appropriate.

(c) issuance of new mortgage loans or mortgage acquisitions, suitable to serve as coverage of the certificates.

(d) affecting the payment of new eligible mortgage loans mortgage bonds to serve as coverage.

(e) depreciation of certificates and bonds for the amount needed to restore the balance. This depreciation, if necessary, will be early and by lot.

3. The public funds or cash deposit must be done within a maximum period of ten working from the following that which had occurred in the imbalance, provided that in the aforementioned term had not restored.

In any case, within a maximum period of four months should by any of the actions listed in paragraphs 2(c)), d) and e) of the previous issue, restore the proportions referred to in articles 58 and 59.

Four. Deposit of money or public funds referred to in the letter to) paragraph two of this article will be particularly affected by Ministry of law, in concept of pledge to the repayment of the capital of the certificates and bonds, deducted the amount of the premiums of any kind that are. If it devengare interests or products, its amount will be equally affected the payment of interests of these certificates and bonds and, if there is a surplus, to refund premiums.

Such deposit, such as interests or products not available CA within the period of four months from the Constitution, in the case of cards or with the agreement of the Union of holders of bonds or the single bondholder of the emission in the case of bonds, which shall be recorded in the Constitution of the same. The provision will have the exclusive subject to early repay bonds and certificates, granting new credits of coverage, equity mortgage or pay at maturity interest or capital of the certificates or outstanding bonds that will mature within the period indicated.

Article 61. Emission.

One. Entities referred to in article 2.1 of this Royal Decree may involve third parties in mortgage loans in its portfolio through the issuance of mortgage holdings represented by nominative titles or annotations into account.

Two. In any case, each value will refer to participation in a particular mortgage.

The issuance of several participations of a same credit may be carried out simultaneously or in succession, and in both cases, at the beginning or during the term of the loan.

3. Involvement confer on its owner the rights established in the Act and which are expressed in the other.

The issuer shall retain the custody and administration of mortgage as well as partial ownership of the same and will be forced to make many acts are necessary for the effectiveness and good end of it, paying participants, even in case of prepayment, the percentage that corresponds to them in what is perceived of the mortgagor in respect of principal and interest in accordance with the conditions of issuance.

Four. Where the holder of the share is an entity authorized to issue mortgage, the portion of the mortgage credit incorporated participation is included in the basis of computation referred to in article 59.1 of this Royal Decree, provided that participation is not computable as asset risk of the issuer, pursuant to article 62.3 and that the credit subject to participation is suitable for purposes of coverage.

Article 62. Prohibitions.

One. Mortgages that guarantee the issuance of mortgage bonds may not be object of mortgage holdings.

Two. Entities with capacity to issue mortgages may not make participate in mortgage loans in their portfolio or transmit participations which have acquired, when as a result of such transmissions it result exceeded the limits laid down in article 59.

3. When participation is carried out by all of the remaining period until the final expiry of the contract and there is no Covenant of repurchase, the portion owned credit not be computed as the CA risk asset. In this case the issuer may not assume responsibility directly or indirectly guarantee the good end of the operation or anticipate funds participants without having received from the debtor.

Article 64. Minimal mentions of the title or deed.

1. the titles of the mortgage holdings will be nominative and in them it will consist, as a minimum: one. Its specific designation and indication of his regulatory law as well, the possible limitations to its circulation.
Two. The initial capital of participated credit, time and form of amortization, interest-bearing and their due dates, as well as their registration in the land registry data.

3. The percentage which incorporates the participation on mortgage credit, term and form of reimbursement of, interest-bearing, their due dates, interest, if any, agreed and the other conditions of participation.

Four. Personal circumstances and the address of the participant or participants.

5. The obligation, on the successive holders of participation, notify its acquisition to the CA, as well as his home.

6. Identifiers the CA data, seal it, and the autograph of, at least, one of its representatives with power of disposal of real estate.

When the subscription and holding of shares is not limited to institutional or professional investors, and can be subscribed or purchased by the non-specialised public they broadcast public writing, which will be taken note in the registry of property, apart from the registration of the corresponding mortgage. Practiced the marginal note, the third persons who acquire any right over the mortgage will do so with the burden of payment and participation and interests.

2. when the mortgage participations are represented through book-entry shall be entered, in any case, in the public document referred to in article 6 of the law 24/1988, of July 24, the stock market, those of the data mentioned in paragraph 1 above which are compatible with this form of representation.

Article 65. Executive action.

One. Foreclosure of credit involved corresponds to the issuer and the holder's participation in the terms established in article 66.

Two. Without prejudice to the provisions of the preceding paragraph, the holder of the mortgage participation will take executive actions against the CA for the effectiveness of the same maturities for principal and interest, depending on the percentage of participation and provisions on the issue, provided that the breach of such obligation is not the result of non-payment from the debtor of the mortgage loan participated.

Article 66. Powers of the holder.

If the breach was the result of non-payment from the debtor, the owner or owners of the shares shall have the following powers: to) compel the CA so that it calls the foreclosed.

(b) equal access rights with the issuer, in execution against the debtor, that this person to do so in any enforcement proceeding called by one and participate in the product of the sale in proportion to their respective percentage in the executed loan and without prejudice to that CA perceived the possible difference between the interest agreed in the loan and the agreed participation When this is lower.

(c) if that does not start the procedure within sixty calendar days from the notarial diligence of payment of the debt, the holder's participation will be legitimized indirectly to exercise action mortgage credit participated in the amount corresponding to the percentage of their participation, both principal and interest.

In this case will be remaining part of the credit not participated and the participations not executed as charges preferred, being understood that the bidders accept them and is involved in the responsibility of the same, without allocated to your payment and termination of the auction price.

(d) in the case of suspension of the procedure followed by the CA, the venturer may stand in the position of that and continue the procedure.

In the cases provided for in subparagraphs c) and (d)), the holder's participation may urge the competent judge the initiation or continuation of the procedure foreclosed, accompanying its demand the original title of the participation, the notarial requirement referred to in subparagraph (c)) precedent and registry certification of registration and subsistence of the mortgage. To issue this certification shall be recorded in the register, using marginal note that registry certification is issued and indicate the date and the identity of the applicant. These circumstances shall be entered in the issued certification.

Article 67. Transmission.

3. CA take a special book in which to score the shares issued on each credit, as well as transfers of them notified him, being applicable to shares the nominative titles set by article 53 of this Royal Decree. In the book itself, you enter changes of address which have been notified by the holders of shares.

This book shall include also the following information: a) date of opening and expiration of the credit, import the same initial and disposal method.

(b) registration of the mortgage.

Article 69. Safe.

The entities participating in the mortgage market may also make payment of the principal and of participation by the recruitment of insurance in favour of the shareholder for the primary coverage and interest, and in charge of the CA.

Article 72. Investments.

One. The certificates, bonds and mortgage participations will be admitted under the same conditions than the values quoted in the bag for the composition of investments which constitute special reserve funds, with secondment of fate of commercial companies.

En_particular will be admitted: to) in the Constitution of investment of technical reserves for insurance and capitalization and savings institutions.

(b) in the investment of the resources of the society and interest funds, pension funds, or other similar collective investment entities.

(c) for the investment of any reserve funds of financial and non-financial entities that must comply with administrative obligations for investment in fixed-income securities quoted on stock exchange.

Two. Mortgage investments that have no consideration of negotiable value according to the rules governing the issuance of securities shall be regarded as mortgage loans for the composition of the investments that form the special reserve funds, with secondment of fate of commercial companies referred to in the preceding paragraph.

Article 81. Admission into bag.

The admission to trading on the stock exchanges of mortgage securities issued pursuant to law 2/1981 of 25 March, and this regulation, shall comply with the law 24/1988, of July 28, the stock market.

Article 82. Operations on own mortgage securities.

One. Authorities referred to in article dos.uno of the law 2/1981, dated March 25, may buy, sell and pledge their own mortgage securities to regulate the proper functioning of its liquidity in the market. Also may make advance redemption of these securities provided that it had passed, at least a year from the issuance of the same and for any reason held and legitimate possession of the CA.

Second transitional provision. The portfolio of mortgage loans of credit institutions with the possibility of participation in the mortgage market may be used for the issuance of certificates, bonds and shares of mortgage if those loans had conditions that are specified in this decree or to validate through the appropriate acts.

ADDITIONAL provision is authorized to the ministries of Justice and of finance, in the field of their respective competencies, to dictate the complementary norms and development of this Royal Decree.

Given in Palma de Mallorca on August 2, 1991.

JUAN CARLOS R.

The Minister of economy and finance, CARLOS SOLCHAGA CATALAN