When taking out a personal or mortgage loan in Spain, banks often apply various commissions and charges. However, some of these have been deemed unlawful, abusive, or unjustified by the Bank of Spain, particularly in its annual Memoria de Reclamaciones (Complaints Report) and other supervisory documents.
In this article, we explain which are the most relevant unlawful charges in bank loans, why they are considered improper, and how affected consumers can reclaim their money.
What are unlawful bank charges?
Unlawful bank charges are fees imposed by banks without proper justification, without an actual service being provided, or in breach of Spain’s banking transparency regulations.
The Bank of Spain has repeatedly confirmed that no commission can be charged if:
- The service was not expressly requested or accepted by the client;
- The service was not effectively provided;
- The fee does not correspond to a real cost.
To be valid, a commission must meet the following three conditions:
- Transparency: the customer must have been clearly informed.
- Legality: the charge must comply with banking regulations.
- Proportionality: it must relate to an actual and measurable service.
The most relevant unlawful or unjustified commissions
Below is a list of the main types of commissions that the Bank of Spain has declared improper, particularly in mortgage and personal loan contracts:
Context: This charge is often automatically applied when a loan repayment fails and the bank claims a fee for “recovery management” or “debt notification”.
Bank of Spain’s position:
- The fee is only lawful if the bank can prove that a personalised and effective action took place (e.g. a phone call or formal letter).
- Automatic application of this fee without such action is deemed abusive.
- Often used as a hidden penalty, and fully reclaimable in many cases.
Example: €35 charged for each unpaid instalment without specific follow-up → unlawful.
Context: Applied when the loan is first granted, usually as a percentage of the loan amount (e.g. 1% on €100,000 = €1,000).
Bank of Spain’s position:
- Must be linked to actual, provable administrative costs incurred by the bank.
- Cannot be used to generate automatic profit.
- Spain’s Supreme Court (judgment of 23 January 2019) ruled that such fees are null and void if not properly explained or negotiated.
Conclusion: If not clearly agreed and justified, this fee is unlawful and recoverable.
Context: Charged when the borrower repays the loan in full or in part before the agreed term.
Bank of Spain’s position:
- Law 5/2019 on Real Estate Credit Contracts limits these charges both for fixed and variable rate mortgages.
- Must reflect the bank’s actual financial loss, not exceed it.
- Not applicable unless clearly set out in the contract.
Example: 3% penalty on early repayment may be illegal if it exceeds legal caps or lacks proper disclosure.
Context: Some banks charge for issuing mandatory documents, such as debt balance certificates or proof of loan termination.
Bank of Spain’s position:
- If the certificate is required by law (e.g. for notary or land registry cancellation), no charge is allowed.
- Only optional or voluntary certificates may involve a fee.
Example: Charging €100 for a loan payoff certificate required to cancel a mortgage → unlawful.
Context: Fees imposed for services not requested by the client, such as duplicate statements, unsolicited insurance, or additional documentation.
Bank of Spain’s position:
- These charges are invalid if the client did not request or accept them.
- Even if included in the contract’s general terms, there must be clear and informed consent.
Example: Charging for a “notification service” never requested → illegal.
Context: Charges applied when the borrower asks to modify basic aspects of the loan (e.g. change of payment date or bank account).
Bank of Spain’s position:
- Only justified if the change involves a real administrative process or cost.
- If the modification is standard or automatic, the fee is not justified.
Example: €90 to change the linked bank account for repayments → unjustified unless proven otherwise.
We advise on the drafting of all types of CONTRACTS AND LEGAL ACTS.
At AGAVE ABOGADOS we advise you on the entire purchase and sale process, especially the drafting of the earnest money contract.
What to do if your bank has charged an improper commission
Step 1: Contact the bank’s Customer Service
File a formal complaint with the bank’s Customer Service Department. They are legally required to respond within:
- 15 days for payment-related services.
- 30 days for general claims.
Step 2: File a complaint with the Bank of Spain
If the bank’s reply is unsatisfactory or not received in time, you may lodge a complaint with the Bank of Spain’s Complaints Service, free of charge. They will issue a reasoned report, which, while not legally binding, carries considerable weight in legal proceedings.
Step 3: Take legal action (if necessary)
If the report confirms wrongdoing, you can take the matter to civil court and recover the amounts charged, often with interest and legal costs.
How to avoid abusive commissions in future loans
- Carefully review the European Standardised Information Sheet (ESIS) and the Pre-contractual Information Form before signing.
- Request written confirmation of all associated costs.
- Be cautious with vague clauses allowing for undefined commissions.
- Keep all loan documentation and communications.
- Seek advice from a legal expert in banking law if in doubt.
Conclusion
The Bank of Spain has repeatedly confirmed that many charges imposed by banks in loan agreements are unlawful or abusive, particularly when:
- No actual service is provided;
- The charge was not properly disclosed;
- The client never agreed to it.
Debt recovery fees, opening commissions, early repayment charges, and fees for mandatory certificates are among the most frequent unlawful practices. If you have paid any such fees, you have the right to demand a refund.
Taking action through the proper complaint channels — and, if necessary, through the courts — can help you recover what is rightfully yours.
Have you been charged unjustified fees in your mortgage or personal loan? Our legal team can assess your case at no cost and help you recover all unlawful charges.
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