Donation with Reversal and Prohibition to Dispose: When the Registrar Can Reject It

Key data

A bare ownership donation deed executed in Marbella was rejected by the property registrar No. 4 upon detecting that the sum of three clauses emptied the donee's right of content while the donor lived. The Resolution of June 19, 2026 from the General Directorate of Legal Security and Public Faith (DGSJFP), published in the BOE on October 22, 2026 with reference BOE-A-2026-22031, establishes the criterion on when the accumulation of reservations in a donation distorts it and converts it into a mortis causa transaction.

This criterion has direct consequences for advisors, notaries, families with real estate assets, and any business or individual using donations with reservations as a succession planning tool.

What does this resolution establish?

The Marbella notary included in the bare ownership donation deed of two properties the following three clauses simultaneously:

• Reversal ad nutum or at the donor's will: the donor can recover the donated assets at any time, without needing to justify any cause (under art. 641 of the Civil Code).
• Reservation of disposal faculty: the donor reserves the right to dispose of the donated assets, in accordance with art. 639 of the Civil Code.
• Prohibition to dispose without the donor's consent: the donee cannot transfer or encumber the assets without the donor's express authorization.

The registrar made a negative qualification of the deed by understanding that the accumulation of these three clauses deprives the donee of any effective real right while the donor lives. In practice, the donee cannot use, sell or encumber the assets, and the donor can recover them whenever they wish. This, according to the registrar, converts the operation into a donation mortis causa, which must be formalized as a testamentary bequest and not as an inter vivos donation.

The notary appealed arguing that each clause is individually supported by the Civil Code and pointing out inconsistencies in the qualification. The DGSJFP analyzes whether the individual validity of each clause is sufficient or whether their accumulation distorts the legal transaction.

Economic and operational impact

The practical consequences of this criterion are relevant on several levels:

• Cost of negative qualification: a rejected deed implies repeating the notarial process, possible modifications of the legal transaction, new fees and delays in patrimony transfer.
• Risk of transaction nullity: if a donation with these accumulated clauses is qualified as mortis causa and has not been executed with testamentary formalities, the transaction may be ineffective.
• Tax impact: qualification as inter vivos donation or as bequest has different tax consequences in the Inheritance and Gift Tax, with differences that can be very significant in high-value real estate such as those typical in Marbella.
• Blocked succession planning: donation structures with reservations are common in the transfer of family real estate assets. This criterion requires reviewing the clauses before signing.

The resolution is especially relevant in high-value real estate markets, where donations with reservations are frequently used as a tool for tax and succession optimization.

Who does it affect?

• Donors who want to transfer real estate assets during their lifetime while maintaining control over them.
• Donees (children, heirs, partners) who receive assets with accumulated restrictive clauses.
• Notaries who must draft donation deeds with reservations: they must review the combination of clauses before authorizing.
• Property registrars who qualify deeds with these characteristics.
• Tax and estate advisors who design real estate patrimony transfer structures.
• Families with high-value real estate assets, especially in areas like Marbella where this type of operation is frequent.
• Law firms specialized in succession law and estate planning.

Practical example

A father wants to donate to his son the bare ownership of two apartments in Marbella, but wishes to maintain full control while he lives. The notary includes in the deed the three analyzed clauses: free reversal (can recover the apartments whenever he wants), reservation of disposal (can sell them himself) and prohibition to dispose for the son without his consent.

The Marbella registrar No. 4 rejects registration: the son cannot sell, cannot encumber and the father can recover the assets at any time without cause. In practice, the son has no effective real right while the father lives. The registrar concludes that this is a concealed donation mortis causa, which should have been formalized as a bequest in a will.

Result: the deed is not registered, the father must return to the notary, reconsider the structure (for example, by eliminating one of the clauses or going directly to a will with bequest), and assume the costs and delays of the process. If the operation also had associated tax planning, it may be affected.

What should affected parties do now?

1. Review pending donation deeds for registration: if they contain the three accumulated clauses (free reversal + reservation of disposal + prohibition to dispose), consult with the notary before submitting them to the registry.
2. Audit donation structures already signed but not registered: verify if they can be subject to negative qualification under this criterion and act before submitting them.
3. Assess legal alternatives: if the objective is to maintain control over the assets until death, a testamentary bequest or a donation with a single reservation clause, without accumulation of the three, may be more appropriate.
4. Consult the tax impact of reclassification: if the operation changes from inter vivos donation to mortis causa, the treatment in the Inheritance and Gift Tax changes. Review with the tax advisor.
5. Update deed models in notarial offices and advisory firms: incorporate this DGSJFP criterion as a limit in the design of accumulated clauses in donations.

Official source

Consult complete regulation in official source

Notice: This article is for informational purposes only and does not constitute legal advice. For specific decisions, consult a qualified professional. Source: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2026-22031