The deadline to claim the ground clause is over

2 March, 2023
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Mortgage
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Mònica de Sangenís


The Court of First Instance No. 50a of Barcelona reminds us in its last hearings of the proximity of the date in which the restitutory action that brings with it the declarative action of nullity of the ground clause will be prescribed.

This coming June, it will be five years since the General Council of the Judiciary created a total of 54 courts of First Instance specialities in disputes relations with the general conditions included in the financing contracts with real, real estate guarantee in which the borrower was a natural person. Since then, the collapse of the Court of Barcelona has been a constant matter in which the declarative action of nullity of the ground clause was carried out, as well as the consequent restitutory action, one of the most prominent.

Although this has been the case up to now, and there are still many demands that stand in the way of calling for the nullity of this clause and the restitution of the amount paid out in an improper manner, on 9 May 2023 it could be considered that the restitutory action involving the declarative action of nullity of the ground clause will be prescribed. The Court of Justice of the European Union, in its judgment of 16 June 2020 (accumulated cases C-224/19 and C-259/19), does not object to national legislation, on the one hand, recognising the unpredictable nature of the action of nullity of the ground clause included in a contract concluded between a professional and a consumer but, on the other hand, subjecting the action aimed at making the restitutory effects of this declaration of nullity to a limitation period.

Thus, while the action of nullity of the ground clause is an unpredictable action, the restitutionary action accompanying it is subject to the limitation period and it is the Court of Justice of the European Union which determines that, in order for this to happen, the provisions of Directive 93/13 will not be violated, nor the time when this period begins to run or its duration must make the consumer’s right to request this restitution impossible in practice or excessively difficult.

Consequently, it cannot be considered that the start of the limitation period begins when the contract was formalized or when the quotas in which the ground clause was applicable were paid, but that the start of the limitation period must be located, as provided for in Article 121-23 of the Catalan Civil Code, at the time when the consumer knew or was able to know that this clause that had been incorporated into his mortgage loan contract could be abusive.

This ten-year period provided for in Article 121-20 of the Catalan Civil Code the Court of First Instance No. 50 bis of Barcelona places it at the moment when the Supreme Court analyzed the validity of the ground clause in the sentence No 1916/2013 of 9 May 2013 and therefore, on 9 May 2023, ten years after its publication, it may be considered that the restitutory action that bears the declaratory action of nullity of the ground clause will be prescribed since it is considered that from that date the consumer was already able to know the scope and consequences of the declaration of abuse of the ground clause and, in particular, the restitutory effects that derived from it.

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