derecho hipotecario y propietarios insolventes



The dation in payment is an effective mechanism to avoid worsening the situation of the mortgagor who cannot afford the payment of the rest of the mortgage.

In this case, it allows to hand over the ownership of the percentage of the real estate held in exchange for paying off the outstanding debt.

It avoids the accumulation of interest and other negative consequences, as will be explained below.

This alternative procedure is born in the attempts to alleviate the disjunctive of the subjects that are faced with this type of problems, minimizing the damages that they are going to suffer.





Article 1911 of the Civil Code establishes the principle of universal patrimonial liability, by which every debtor will be liable for the fulfillment of the obligations contracted with all its present and future assets.

Therefore, the banks have the power to require the debtor to return the property (termination of the mortgage with the consequent delivery of the mortgaged property) and, if the debt is not fully satisfied, the former owner will have to continue paying the installments and will have lost the ownership of the property.

Therefore, the Second Chance Law and the dation in payment and the dation for payment contained therein, offered to the insolvent debtor, are more than interesting to reduce the impact of the mortgage debt liquidation procedure. It reduces the scope of the aforementioned universal patrimonial liability, subject to the fulfillment of certain requirements.




The dation in payment contemplates an alternative possibility of fulfillment of the obligation in the form initially fixed by the parties. It is not only applied in the mortgage context, but it is the most common, since a large number of debtors face a delicate economic situation that prevents them from paying the mortgage in full.

This method of payment of the debt becomes important in national or international situations such as economic recessions, where a great number of citizens lose their jobs and stop receiving the income they had received until now.



But the dation in payment (at least, in the mortgage field) has its limits, in the form of requirements:

 1166 of the Civil Code brings up the principle of identity of benefits: it specifies that the creditor cannot be obliged to receive from the debtor the payment of the debt in a manner different from that stipulated by the parties. It follows that the creditor must consent to payment different from what was previously agreed.

 As a result of the above, there is a requirement that, in reality, becomes a safeguard for the mortgagor: that a contractual clause is drafted in which the option of dation in payment is enabled at the time of signing the mortgage loan (the exception is the alternative way of compliance with this requirement as established in the Code of Good Practices (as established in Royal Decree-Law 6/2012, of March 9, on urgent measures for the protection of mortgagors without resources).

As types of dation, a difference is made between dation in payment (which is the subject of this article) where the creditor takes possession of the debtor’s assets, and dation for payment, where there will be disposal of the assets in the form of alienation or other type of onerous transfer to settle all or part of the debt.



As points of reflection of the advantages and disadvantages of the dation in payment, it is necessary to emphasize that:

 a) Although there is a patrimonial transfer of a real estate property, it is not necessary to liquidate the capital gains tax.

 b) The legal interests, of delay… that are accumulated stop increasing the amount to be paid by the debtor, when the debt has been liquidated.

 c) The immersion in a slow and unpleasant executive process for both parts is avoided.

 a’) On the contrary, the most common after this method of resolution of the bond between the parties, there are two main negative effects (in addition, obviously, to the loss of ownership of the property): That the subject is going to find more difficulties at the time of the concession of a new mortgage credit, and that, in case of obtaining it, the conditions are going to be more burdensome than the previous ones.


ley segunda oportunidad



It should be noted that the Second Chance Law mentioned above has been operating in Spain since 2015. Regulated by Royal Decree-Law 1/2015, of February 27, 2015, on the mechanism of opportunity, reduction of financial burden and other measures of social order, it agglutinates several mechanisms of renegotiation or partial or total cancellation of the debt. 3 are the requirements to use the mechanisms offered by the Royal Decree:


1- To be a debtor in good faith

2- To present insolvency for the payment of the mortgage debt.

3- That the debt does not exceed 5 million euros.


Steps to follow


The procedure to follow consists of 3 main steps:

1- The first step, obligatory, is the Extrajudicial Agreement of Payments. The aim is to avoid the liquidation of the insolvent party’s assets, but, if this is not feasible, the procedure is continued.

 2.-  The second step is the liquidation of the insolvent debtor’s assets. The procedure is not particularly new up to this point, but the important part is now being prepared.

 3.- The third step is the one that unblocks the limit situations for the debtors. A Benefit of Exoneration of the Unsatisfied Liability will be requested, which can be provisional or definitive. What does this avoid? That, after liquidating your assets, the bank can continue issuing collection demands for the remaining amount.

In addition, with the 2019 reform, the limitations regarding the type of mortgage debt are eliminated. It will even be possible to liquidate debts such as those subscribed with the Public Treasury or the Social Security.





With the reform of the Insolvency Law at the beginning of July 2022, one of the aspects to be highlighted is the change in the context of the Second Chance Law. Although the main concept maintains its essence (debtors are granted an escape route to somehow face the insolvency in which they find themselves) there are a series of changes to highlight:


Debts outside the business activity.

In the first place, the subjects who subscribe a debt outside the business activity itself will also be able to avail themselves of the Second Chance Law. This makes the use of this legal tool to settle obligations with the creditor more flexible, opening the door to all types of object and subject.

No need for an out-of-court payment agreement

Secondly, the obligatory nature of the negotiation of an out-of-court payment agreement, as an initial step, is eliminated.

Negotiation is no longer mandatory but optional. What is the main benefit? That it reduces the time periods and favors procedural economy.

The main disadvantage is that, in most cases, out-of-court settlement in this area will not be used if it is not mandatory, which will inevitably reduce the number of agreements prior to the liquidation process (which benefits both parties).

Payment plan

Thirdly, the payment plan route is empowered to prevent the insolvent debtor from losing his home and assets (the original route is the liquidation of the debtor’s estate).

It is possible to pay part or all of the debt with this method.

It should be noted that this is positive for obvious reasons (an extension of the end of the payment period, which would help the debtor to avoid foreclosure and, therefore, eviction).

However, if extrapolated to the legal world in general, it is not too different from simple default which generates legal interest.

Possibility of prior refusal of work


Fourthly, an obligation not to do is eliminated: not to have refused work in the last 4 years.


New requirements


With respect to the new requirements included after the reform, there are two main ones:

1.-Not to have resorted to the Second Chance Mechanism in the 10 years prior to the application.

2.-Not to have a criminal record for economic crimes.

The aim is to take care of this system, which cannot be used indiscriminately: this would have negative consequences that could lead to a collapse of these procedures and prevent those really affected from saving their patrimony.


Exoneration of public debt


The other main part of the reform involves an advance in the exoneration of public debt: from 2,000 euros in aggregate it now has a maximum of 20,000 euros in aggregate (10,000 euros before the Tax Agency and 10,000 before the Social Security). This mainly benefits SMEs, which will have a smaller capital and, therefore, will see a higher percentage of the public debt covered by this exemption. This measure joins others such as the Social Bonds, which protect Small and Medium Enterprises, trying to favor equality of arms and the defense of competition and the free market,


It is important to talk about this law, since it offers an alternative way to the clauses of dation in payment included in the mortgage deed (which, in numerous occasions, are not included by will of the mortgagee) and, in addition, it empowers to try the extrajudicial way, in case of not being possible the agreement, to go to the judicial way and that an impartial third party decides as last ratio.


If you need help with this procedure, please contact us.