Opening commission and mortgage expenses in Spain: Supreme Court doctrine in judgments 1353/2026 and 1356/2026
The Spanish Supreme Court has reshaped mortgage litigation again: judgment 1353/2026 explains when an opening commission can pass the transparency test, while judgment 1356/2026 confirms that the limitation period for recovering mortgage expenses does not start when the invoices were paid, but when the judgment declaring the clause void becomes final, unless the bank proves earlier individual knowledge by the consumer.
Why these two judgments matter now
Claims for opening commission, Spanish mortgage expenses, notary fees, land registry fees, agency fees, valuation costs and statutory interest remain one of the largest areas of banking litigation in Spain. Thousands of borrowers still hold old mortgage deeds, many banks keep replying that everything is time-barred, and many consumers do not know whether the commission charged at completion can still be challenged.
In September 2026 the Spanish Supreme Court delivered two particularly useful rulings: judgment 1353/2026 of 3 September, on opening commissions, and judgment 1356/2026 of 3 September, on the limitation period for recovering mortgage set-up costs.
The first ruling does not say that every opening commission is valid. The second does not mean that every claim is risk-free forever. The key point is more precise: the Court is setting a method of analysis based on the mortgage deed, the pre-contractual information, the real cost, the APR, overlapping bank charges and the date on which the consumer could effectively know that the clause was unfair.
In plain terms: some opening commission clauses will be defensible and others will remain challengeable; and, for mortgage expenses, the bank's usual argument that time started when the invoices were paid has become much weaker.
The two Supreme Court rulings at a glance
| Judgment | Topic | Practical effect |
|---|---|---|
| STS 1353/2026, First Chamber, 3 September 2026 | Opening commission | The Court upheld a specific EUR 450 commission on a EUR 90,000 loan because it passed the transparency test and was not unfair in that case. |
| STS 1356/2026, First Chamber, 3 September 2026 | Mortgage expenses and limitation | The Court confirmed that time for restitution normally starts when the judgment declaring the clause void becomes final, unless the bank proves earlier actual and individual knowledge by the consumer. |
The distinction matters for litigation strategy. With the opening commission, the focus is transparency and unfair imbalance. With mortgage expenses, the key issues are nullity of the costs clause and the starting point of the limitation period for restitution.
What is an opening commission and why is it challenged?
An opening commission is an amount charged by the bank at the beginning of the loan, usually as a percentage of the capital granted. For years it was presented as payment for studying, processing or granting the mortgage.
The legal problem arises when the commission is inserted as a standard term without sufficient explanation, when the borrower cannot understand the real economic burden, when it overlaps with other charges or when the amount is disproportionate and lacks a comprehensible justification.
Spanish consumer rules, the Act on General Contracting Conditions, the Consumer Protection Act and Directive 93/13/EEC require non-negotiated terms to be clear, understandable and free from a significant imbalance to the detriment of the consumer.