BOE-A-2026-5940 ·13 March 2026 ·Resolution Low impact
Tax

Directorate General for Legal Certainty validates unilateral waiver of mortgage recharges for the benefit of a second-rank creditor

The Directorate General for Legal Certainty and Public Faith has ruled on an appeal against the suspension of the registration of a deed irrevocably waiving the right to recharge a first-rank mortgage (Articles 4.2 and 4.3 of Law 2/1994). The debtor, owner of a property, waived the power to agree to an increase in the loan principal with the first-rank creditor to protect the stability of the second-rank mortgage held by the AEAT (Spanish Tax Agency). The resolution examines the interpretation of modificatory novation and the purpose of making mortgage real rights more flexible (Law 41/2007).

In 2 key points

  1. The waiver of the recharge is made irrevocably for the benefit of the second-rank creditor (Articles 4.2 and 4.3 of Law 2/1994) (art. 4.2 y 4.3 de la Ley 2/1994)
  2. An increase in principal or term does not, in itself, cause the loss of mortgage priority if other modification factors are present (Article 4 of Law 2/1994) (art. 4 de la Ley 2/1994)

How it affects those involved

For companies owning properties with multiple mortgage charges, the ruling confirms the feasibility of waiving the right to recharge to safeguard the position of lower-ranking creditors (in this case, the AEAT). This provides greater legal certainty when structuring successive guarantees. For first-rank creditors, the waiver limits their ability to increase the loan principal without affecting the priority of the second-rank mortgage.

Lifecycle

2026-03-13PublishedPublished in the BOE
Official text Based on BOE data (boe.es). Information, not advice.
PDF on boe.es

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