Unfair mortgage clauses in Spain: how to claim

An unfair term is a clause not individually negotiated which, contrary to the requirements of good faith, causes a significant imbalance to the consumer's detriment (art. 82 of the Spanish Consumer Act, TRLGDCU). It is null and void and treated as never included, but the mortgage agreement is preserved if it can survive without it.

What is an unfair term and what happens if it is annulled?

A term is unfair when, not having been individually negotiated, it causes, contrary to good faith, a "significant imbalance" in the parties' rights and obligations to the consumer's detriment (art. 82 of the TRLGDCU). If declared unfair, it is null and void and treated as if it had never been included (art. 83).

The definition sits in the consolidated text of the Spanish General Act for the Defence of Consumers and Users (TRLGDCU) — the Spanish transposition of the EU rules on unfair terms (Directive 93/13 wording). The test targets terms pre-drafted by the institution that the client could not negotiate individually: the consumer does not have to show that the whole agreement was up for discussion, only that this specific condition was imposed. Article 83, in its consolidated text (wording introduced by Law 5/2019), provides that unfair terms are "null and void by operation of law" and "shall be treated as not included", and preserves the agreement where it "can survive" without the annulled terms. The same wording also annuls conditions incorporated in a non-transparent way that harm the consumer.

And the money paid under a null term? Restitution rests on the general rule of article 1303 of the Spanish Civil Code: once nullity is declared, the contracting parties "must return to each other" their performances. The courts have declared specific terms null and have ordered refunds in numerous cases, but the outcome depends on the agreement and on the evidence in each case: no guide can promise an amount or a result.

What is the floor clause and when is it unfair?

The floor clause (cláusula suelo) puts a minimum on the interest rate of a variable mortgage: even if the reference index falls, the instalment does not drop below that limit. Judgment STS 241/2013 of 9 May 2013 (ECLI:ES:TS:2013:1916) subjected these clauses, when pre-drafted in consumer contracts and affecting essential elements of the agreement, to a "double transparency test".

That double test demands more than grammatically clear drafting: the consumer must be in a position to reach a "real understanding" of the economic and legal burden being taken on — that is, to grasp that, in practice, their variable mortgage could behave like a fixed-minimum mortgage whenever the index fell. The Supreme Court (Tribunal Supremo) qualified in that same judgment that a "lack of transparency" does not automatically make every floor clause unfair: its impact on the contractual balance must be examined and, in particular, whether the client could understand what they were signing.

The floor operates in variable mortgages referenced to an index; if yours is the Euribor, the guide on what the Euribor is explains how it is formed and how it moves the instalment.

Is there a time limit on refunds for floor clauses?

No temporal limitation is allowed. The CJEU, in its judgment of 21 December 2016 (joined cases C-154/15, C-307/15 and C-308/15, the Gutiérrez Naranjo case, ECLI:EU:C:2016:980), held that EU law "precludes" limiting in time the restitution arising from an unfair floor clause.

In practice, that ruling meant the refund could not be restricted to amounts paid after 9 May 2013, the date of judgment STS 241/2013: if the clause is null because it is unfair, restitution reaches everything charged under it, following the rule of article 1303 of the Spanish Civil Code. What amount corresponds in each case depends on the agreement, on the settlements applied and on the evidence, so it is worth calculating and defending it with professional advice.

When can the bank call in the whole mortgage for non-payment?

Only if the thresholds of article 24 of Law 5/2019 (LCCI) are met: there must be default on capital or interest payments, and the unpaid debt must reach a legal minimum amount, which differs depending on the half of the loan term in which it occurs.

In addition, before claiming full repayment, the lender must demand payment from the borrower and allow "at least one month" to comply, with the warning that, failing that, it will claim the entire debt (art. 24.1.c). And article 24.2 shuts the door on contractual watering-down of this protection: these rules "admit no agreement to the contrary".

What about mortgages signed before Law 5/2019? The first transitional provision (paragraph 4) applies article 24 also to agreements predating its entry into force, unless the debtor argues that the provision in their agreement is more favourable to them. It does not reach, however, agreements whose early termination had already occurred before that entry into force, "whether or not" foreclosure proceedings had been brought and whether or not they were suspended.

What default interest is allowed on a mortgage?

In loans subject to the LCCI granted to natural persons, default interest is the ordinary interest rate "plus three percentage points" (art. 25 of Law 5/2019). The law leaves no room to agree a higher surcharge.

That default interest accrues only on the principal due and unpaid, and default interest "may not be capitalised", meaning it cannot be added to the capital to generate further interest. As with early termination, the regime admits no agreement to the contrary. To the same effect, the third paragraph of article 114 of the Spanish Mortgage Act (Ley Hipotecaria) (wording given by Law 5/2019) can be cited for loans concluded by a natural person and secured by a mortgage on residential property: default interest "may not be capitalised".

Which mortgage costs has the Supreme Court allocated?

Where the term loading all set-up costs onto the client is declared null, the Supreme Court (Tribunal Supremo) has allocated to the bank 100% of the registry, agency and valuation costs, and has split the notary fee 50/50. Each criterion comes from a dated judgment.

The AJD stamp duty is the exception: Royal Decree-law 17/2018 changed who pays it in mortgages signed afterwards, but it operated only prospectively, so the AJD paid on mortgages predating that change is not recoverable through the costs-clause route.

Until when can restitution be requested? Judgment STS 857/2024 (ECLI:ES:TS:2024:3076) established that the limitation period for the restitution action runs from the finality of the judgment declaring the term null, unless the bank proves the client knew earlier the facts grounding the claim. The item-by-item detail, with indicative figures for each cost, is in the guide on mortgage costs.

How do you claim against an unfair term, step by step?

The order is: first, your institution's customer service department; then, the Banco de España; and, if you need an order compelling restitution, the courts. Each step has different deadlines and effects.

• 1. The institution's customer service department (SAC). Credit institutions must have a service obliged to "handle and resolve" their clients' complaints and claims (art. 29 of Law 44/2002); Order ECO/734/2004 is the regulatory reference for its "requirements and procedures". For consumers, the institution's general response period is one month; for payment services, the special period of fifteen working days of art. 69 of Royal Decree-law 19/2018 applies. Submit the claim in writing and keep the receipt.
• 2. Banco de España. If the institution does not admit the claim, dismisses it or gives no answer in time, you can go to the Banco de España, which handles complaints about conduct, transparency and "good financial practices and usages" (art. 30 of Law 44/2002). Once the file is complete, the supervisor itself indicates a general period of 90 days to issue its report.
• 3. The courts. The Banco de España report "is not binding" and is not an administrative act open to appeal: it does not replace a judgment nor impose by itself a restitution order. The declaration of nullity with enforceable effects belongs to the judge (art. 83 of the TRLGDCU). Before filing a claim, assess the case with a lawyer or another qualified professional.

Claiming against a term is not the same as renegotiating the agreement: if what you want is to change conditions by mutual agreement with your bank, see the guide on mortgage novation. And to see how much each condition weighs on your instalment, you can compare scenarios with the calculator.

Frequently asked questions

Is the mortgage cancelled if a term is declared unfair?

No. Art. 83 of the TRLGDCU declares the unfair term null and void and treats it as if it had never been included, but the agreement is preserved if it can survive without it. Once nullity is declared, the refund of what was paid under that term rests on the general rule of art. 1303 of the Spanish Civil Code: the parties must return their performances to each other.

Is there a time limit on refunds for an unfair floor clause?

The CJEU, in its judgment of 21 December 2016 (Gutiérrez Naranjo, ECLI:EU:C:2016:980), rejected any temporal limitation of the restitution arising from unfair floor clauses: the refund cannot be restricted to amounts paid after judgment STS 241/2013 of 9 May 2013. The specific amount depends on each agreement and is best assessed with a professional.

How many unpaid instalments allow early termination?

In loans subject to art. 24 of Law 5/2019, the unpaid debt must reach 3% of the capital granted or 12 monthly instalments in the first half of the term, and 7% or 15 monthly instalments in the second half. The bank must also demand payment and allow at least one month before claiming the full amount. This regime admits no agreement to the contrary.

Does a Banco de España report force the bank to refund the money?

No. The Banco de España handles conduct and transparency complaints if you have first complained to the institution, and it indicates a general period of 90 days to issue its report once the file is complete. That report is not binding and does not replace a judgment: to obtain an enforceable restitution order you must go to court.

Summary

• A term not individually negotiated that causes a "significant imbalance" against good faith is unfair (art. 82 TRLGDCU); it is null and void, treated as not included, and the agreement is preserved if it can survive without it (art. 83); restitution is governed by art. 1303 of the Spanish Civil Code.
• The floor clause is subject to the double transparency test (STS 241/2013, ECLI:ES:TS:2013:1916); a lack of transparency does not automatically make it unfair: its real impact must be examined.
• Refunds for an unfair floor clause admit no time limit (CJEU 21-12-2016, ECLI:EU:C:2016:980); the out-of-court mechanism of RDL 1/2017 has been repealed since 3 April 2025 and is history only.
• Early termination requires 3% of the capital or 12 instalments in the first half of the term, 7% or 15 instalments in the second, and a prior demand allowing at least one month (art. 24 LCCI, no agreement to the contrary).
• Default interest is the ordinary rate plus 3 points, only on principal due and without capitalisation (art. 25 LCCI and art. 114 of the Spanish Mortgage Act).
• On costs: notary at 50%, registry, agency and valuation at 100% for the bank; old AJD is not recoverable; the limitation period runs from the finality of the judgment annulling the term (STS 857/2024).
• Claim order: institution (general response period of one month) → Banco de España (report within a general period of 90 days, not binding) → the courts.

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Official sources

• TRLGDCU (Royal Legislative Decree 1/2007) — arts. 82 (unfair terms) and 83 (nullity and survival of the agreement) (BOE, consolidated text).
• Spanish Civil Code — art. 1303 (mutual restitution after nullity) (BOE, consolidated text).
• Law 5/2019 (LCCI) — arts. 24 (early termination) and 25 (default interest) and the first transitional provision (BOE, consolidated text).
• Spanish Mortgage Act (Ley Hipotecaria) — art. 114, third paragraph (BOE, consolidated text).
• Royal Decree-law 1/2017 — out-of-court floor-clause mechanism, rule repealed since 3 April 2025 (BOE, consolidated text).
• Law 44/2002 — arts. 29 (customer service department) and 30 (complaints before the Banco de España) (BOE, consolidated text).
• Order ECO/734/2004 — customer service departments of financial institutions (BOE, consolidated text).
• Banco de España — how to file a complaint (bde.es).
• Supreme Court (Tribunal Supremo) and CJEU: STS 241/2013 of 9 May 2013 (ECLI:ES:TS:2013:1916); CJEU judgment of 21 December 2016, C-154/15 and joined cases (ECLI:EU:C:2016:980); STS 49/2019 of 23 January 2019 (ECLI:ES:TS:2019:105); STS 555/2020 of 26 October 2020 (ECLI:ES:TS:2020:3453); STS 35/2021 of 27 January 2021 (ROJ STS 61/2021; ECLI:ES:TS:2021:61); and STS 857/2024 (ECLI:ES:TS:2024:3076), all retrievable in CENDOJ and CURIA by their ECLI.

Notice: this guide and the calculator are for information and educational purposes. They are not financial, tax or legal advice, nor a loan offer. Whether a specific term in your mortgage is unfair depends on your agreement, on the circumstances of contracting and on the available evidence; the courts decide case by case. Before claiming or filing suit, consult a lawyer or another qualified professional.