Mortgage suspended in Berga: abusive opening commission and 20% capital retention

Key data

More than 20% of a mortgage's capital retained before the borrower sees a single euro: that is what prompted the suspension of registration at the Berga Property Registry. The DGRN Resolution of March 23, 2026, published in the BOE on July 1, 2026, directly addresses one of the most active debates in the mortgage sector: how far does the registrar's control reach when the notary has already issued the transparency deed?

The lending entity argued that it had fully complied with Law 5/2019 on real estate credit contracts and that the borrowers were acting as entrepreneurs, not as consumers. The registrar did not see it that way and suspended the registration. The DGRN had to rule on the merits of the case.

What does this resolution establish?

The resolution addresses three central issues that every private lender must know:

• High opening commission and lack of material transparency: The €2,400 retained as an opening commission was considered by the registrar as potentially non-transparent, meaning that the borrower would not have been able to truly understand its cost and scope, regardless of whether the notary had previously issued the deed.
• Disproportionate retention and usurious character: The €5,300 retained for appraisal, added to the opening commission, exceeds 20% of the granted capital (€37,700). The registrar considered this retention disproportionate and showing signs of usurious character.
• Scope of registral control versus notarial control: The lending entity argued that the notarial transparency deed exhausts the legality control and that the registrar cannot go further. The DGRN expressly delimits how far the registrar can go in qualifying financial clauses, even when there is a prior notarial deed.

The debate about whether borrowers were acting as entrepreneurs or consumers is also relevant: Law 5/2019 offers greater protection to consumers, but the resolution analyzes whether this distinction exempts the lender from general limits on usury and transparency.

Economic and operational impact

For private lenders and non-banking entities, this resolution has immediate operational consequences:

• Risk of registral suspension: An unregistered mortgage is not enforceable against third parties. If the registrar suspends registration, the lender loses the real guarantee that protects its investment until the issue is resolved or the appeal is decided.
• Cost of litigation: Filing an appeal with the DGRN involves time and legal costs, in addition to blocking the transaction for months.
• Review of business models: Loan structures in which a high percentage of capital is retained as commissions and expenses come under direct scrutiny by the registrar, regardless of the notarial deed.
• Impact on loans to entrepreneurs: The resolution clarifies that the fact that the borrower is an entrepreneur does not automatically eliminate registral control over potentially abusive or usurious clauses.

Who does it affect?

• Private lenders and non-banking entities that grant mortgage loans with high opening commissions or significant capital retentions.
• Investment funds and family offices that operate in the private mortgage credit market.
• Notaries who must assess whether the transparency deed they issue is sufficient or if there are elements that the registrar could qualify negatively.
• Property registrars, who see their scope of control delimited against the notarial in mortgage transactions.
• Mortgage borrowers (both consumers and entrepreneurs) who subscribe to loans with high retentions on the granted capital.
• Legal advisors and lawyers specialized in mortgage law who structure private financing transactions.

Practical example

A private lender grants a mortgage loan of €37,700 to an entrepreneur to finance the acquisition of a commercial premises. The deed includes the following retentions:

The borrower signs for €37,700 but receives only €30,000 in hand. The Berga registrar suspends registration by considering that the opening commission lacks material transparency and that the total retention exceeds the reasonable threshold with signs of usury. The lender appeals to the DGRN arguing that the notary already issued the transparency deed and that the borrower is an entrepreneur. The DGRN resolves by delimiting the scope of registral control, with implications for all similar transactions.

What should lenders do now?

1. Review the structure of commissions and retentions in all existing and pending mortgage contracts. If the sum of opening commission and other retained expenses exceeds 15-20% of the capital, the risk of registral suspension is real.
2. Document the economic justification for each commission: material transparency requires that the borrower understands what they pay and why, not just that they sign it before a notary. Prepare specific supporting documentation for each retained item.
3. Do not assume that the notarial transparency deed closes legality control: this resolution confirms that the registrar can qualify financial clauses independently of the prior deed.
4. Review the "entrepreneur borrower" argument: the borrower's status as an entrepreneur does not automatically eliminate registral control over usury and transparency. Do not use this argument as a sole shield.
5. Consult with a specialized legal advisor before closing mortgage transactions with high retentions, especially in loans of reduced amounts where the retained percentage is more visible.
6. Read the full text of the resolution to know exactly the limits that the DGRN sets on registral control, as these limits also protect the lender against excessively restrictive qualifications.

Official source

Consult complete regulation at 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-2026-14312