In this article we will analyze the figures of real estate credit intermediaries , their designated representatives and private lenders , based on what is established in the imminent Law regulating real estate credit contracts, pending publication in the BOE. The final text is already available, when the final approval by the Congress of the Bill regulating the real estate credit contracts, which can be read in the linked document , is published on March 7, 2019. Soon we will study the legal regime of these figures
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Real estate credit intermediaries
Real estate credit intermediary : any natural or legal person who, not acting as a lender, or notary public, develops a commercial or professional activity, in exchange for a remuneration, pecuniary or any other form of agreed economic benefit, consisting of contacting , directly or indirectly, to a natural person with a lender and in addition to performing any of the following functions with respect to the loan agreements referred to in article 2.1, letters a) and b):
- a) present or offer the borrowers said loan agreements;
- b) assist borrowers with prior procedures or other pre-contractual management with respect to such loan agreements;
- c) enter into loan agreements with a borrower on behalf of the lender.
Taking into account that the new Law regulating real estate credit contracts focuses, simplifying, on mortgage loans on residential real estate contracted by natural persons (whether or not consumers), in the form of a loan or credit granted by a financial entity or lender Private, a real estate credit intermediary will be that professional or company that, without lending the money, or being a notary, charges for contacting potential borrowers with the lenders and also offers any of the following services: (i) teaches or explains the loan contract; (ii) assists borrowers in the pre-contractual phase; (iii) enter into the loan agreement on behalf of the lender.
The credit intermediary linked to the credit intermediary acting on behalf and under the full and unconditional responsibility of:
- a) a single lender;
- b) a single group (lenders that present consolidated accounts); or
- c) a number of lenders or groups that does not represent the majority of the market.
Somewhat elusive figure: if a linked credit intermediary acts “on behalf of and under the full and unconditional responsibility” of a lender that is a credit institution, what differentiates it from the figure of the credit institution agent? How to establish that a credit intermediary operates with a number of lenders that do not represent the majority of the market?
In relation to credit institution agents , Royal Decree 84/2015 defines them as “the natural or legal persons to whom a credit institution has granted powers to act regularly in front of the clientele, in the name and on behalf of the Mandating entity, in the negotiation or formalization of operations typical of the activity of a credit institution. Presidents with powers for a single specific operation are excluded, and those who are linked to the entity, or other entities of the same group, for an employment relationship. »A linked credit intermediary does not act by the powers of the lender, or if? The terms “in the name and under full and unconditional responsibility” do not help to understand the difference.
The rule defines the designated representative as any natural or legal person who performs the activities of a real estate credit intermediary on behalf of and on behalf of a single intermediary, under the full and unconditional responsibility of the latter. It is, therefore, a professional or company with a contractual and exclusive relationship with the credit intermediary to provide third parties to the intermediation service.
The real estate credit intermediary will be liable for any action or omission of the designated representative when operating on your behalf. In the particular case of designated representatives of a credit intermediary linked to a single lender, the lender will respond to the actions or omissions.
The Law defines the figure of the real estate lender as any natural or legal person that, in a professional manner, performs the activity of granting the loans regulated in the norm. It will be understood that the activity of granting mortgage loans is carried out on a professional basis when the lender, whether a natural or legal person, intervenes in the market for financial services with a business or professional nature or, even occasionally, for an exclusively investment purpose.
The Law, therefore, considers lenders to both financial institutions and private lenders, whether natural or legal persons.
In the following article we will analyze the legal regime of private lenders, real estate credit intermediaries and designated representatives.