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They say it has lapsed: the real time limit on mortgage costs

Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826

The short answer

The limitation defence is fought over the starting date, not the length. Article 1964.2 of the Civil Code gives five years from when performance can be demanded, and that moment is neither the signing nor the payment of the invoice, but the point when you could know the term was unfair. Proving that knowledge falls on the bank.

You signed the mortgage in 2011 and paid the notary, the registry, the agency fees and the tax out of your own pocket. In 2024 you claimed and the bank does not dispute that the costs clause is unfair: it simply answers that more than five years have passed since the deed and that the action is time barred. At the hearing its lawyer produces press cuttings from 2015 and Supreme Court judgments to argue that you already knew you could claim. That is now the only point in dispute.

The case, in five lines

What is brought: Answer to the limitation defence raised by the bank in the claim for restitution of the costs, disputing the starting date of the five year period under article 1964.2 of the Civil Code.
Before which court: The Civil section of the Tribunal de Instancia (the first instance court) hearing the restitution claim, and on appeal the Audiencia Provincial (the provincial appeal court), where most of these cases are decided.
Deadline: The period is five years under article 1964.2 of the Civil Code, running from when performance can be demanded. The dispute is when that happens: not from the signing or from the payment, but from when the consumer was in a position to know that the term was unfair.
Who can bring it: Whoever paid the costs as a consumer borrower, and any co borrowers in the proportion they bore them. Heirs continue the position of a deceased borrower and can resist the limitation defence on the same terms.
Financial risk: If the court upholds the limitation defence, the claim is dismissed even though the term is plainly unfair, and there may be an order to pay costs. That is why the claim itself must anticipate the defence rather than wait to answer it at the hearing.

These cases are no longer lost on the merits, they are lost on the date

The unfairness of the clause loading all the mortgage set up costs on the consumer is no longer really argued in the courts, and banks have stopped defending it. Their litigation strategy has moved to a single point: to argue that by the time you claimed the five years had already run and that the restitution claim is dead.

Two things that are often confused should be kept apart. The declaration that the term is void is not subject to any time limit, because article 83 TRLGDCU makes it nullity of full right. What does prescribe is the action to get the money back, which is a personal action falling under article 1964.2 of the Civil Code. That is where the case is played out.

Article 1964.2 does not say from signing, it says from when it can be demanded

The wording is short and decisive: personal actions with no special period prescribe after five years from the moment performance of the obligation can be demanded. The provision does not set as the starting date the date of the deed, the date the notary's bill was paid, or the date the tax was settled. It sets a functional moment that has to be established case by case.

In an obligation to restore arising from a void term, demanding performance presupposes knowing that there is something to demand. A consumer who does not know the term is unfair is in no position to claim anything, and counting the period against them from a date they knew nothing about turns the limitation period into a trap. That is the core of the argument put into the pleadings.

The same article also offers a useful contrast: its first paragraph sets twenty years for the mortgage action, against five for personal actions. The rule knows how to distinguish periods by type of action, and the bank cannot pick whichever starting date suits it best by relying on the mere passage of time since the deed.

The existence of case law does not prove that you knew about it

The bank's standard defence is to point to a judgment and say that from that moment everyone knew they could claim. The judgment of the Court of Justice of the European Union of 25 January 2024, joined cases C-810/21 to C-813/21, is the reference now set against that reasoning, because it deals precisely with the starting date of the period in consumer restitution claims.

The argument advanced in the claim is straightforward: the relevant knowledge is that of the individual consumer, not a diffuse social awareness. A judgment being published in a legal bulletin or discussed in the press does not establish that a person with no legal training knew that their deed contained a void term and that they had a right to be repaid.

An important procedural consequence follows from all this: whoever pleads limitation must prove the facts the defence rests on, and here that fact is the consumer's own knowledge. If the bank produces no communication addressed to you, no offer of repayment and no answer to an earlier claim, then it has simply not established the starting date it asks the court to apply.

The burden of proof runs in your favour, as elsewhere in the contract

Article 82.2 TRLGDCU already allocates the burden of proof in this field when it provides that the trader who claims a given term was individually negotiated bears the burden of proving it. The logic is the same on limitation: the bank is the party holding the documentation of the relationship and the one able to show what it disclosed and when.

This translates into a very specific request for evidence within the case: that the bank produce the complete loan file, the communications sent to the customer about affected clauses, and any earlier claims received together with its answers. Whatever is missing from that file counts against the party that had the duty to keep it and the means to produce it.

The starting date is built from your own facts, not from theory

The pleading does not merely deny limitation: it proposes an alternative starting date and supports it with verifiable facts. Useful dates include the first written claim to the bank, the reply from its customer service department, a communication from the bank offering to review the costs, or a statement in which those items appeared for the first time.

It is also worth checking the regime applicable by age. The consolidated text of article 1964 itself notes that the five year period comes from the first final provision of Law 42/2015 and refers to its fifth transitional provision for relationships already in existence, a point examined in each case according to the date of the mortgage.

Finally, any earlier out of court claim interrupts the count and reopens the full five year period from its date, so recovering letters, emails and web forms sent years ago can settle the whole case without arguing a single point of doctrine. It is the first thing looked for when reviewing the paperwork the client still keeps at home.

How we run the case, step by step

1
We fix the full chronology of the matter
We set out in date order the deed, the invoices paid, any earlier claim and the bank's replies. That timeline decides the case, because the starting date we will defend against the one the bank invokes comes out of it.
2
We look for acts that interrupted the period
We review emails, web forms, recorded delivery letters and claims to the customer service department. A single earlier claim, properly evidenced, reopens the whole period and makes the argument about consumer knowledge unnecessary.
3
We anticipate the defence in the claim itself
The initial pleading devotes a section to limitation before the bank raises it, setting out the starting date we maintain and its evidence. Arriving at the hearing without having done so forces improvisation on the one point that decides the outcome.
4
We require the bank to produce the loan file
We ask for disclosure of the communications sent to the customer and of the claims received. If the bank produces no document showing that you knew of the unfairness, the starting date it proposes is left without evidential support.
5
We carry the argument to appeal if necessary
These matters are often settled at second instance, where the criteria on the starting date have gradually converged. The appeal is prepared from the outset, with the ground properly framed and the evidence taken at first instance.

The evidence that decides the case

The first written claim to the bank with proof of receipt, which interrupts the count and fixes a certain date.
The reply from the customer service department, which often reveals since when the bank itself knew of the problem.
The notary, registry and agency invoices with their payment dates, to separate each item and its own count.
The loan file produced by the bank, and the record of which communications simply do not exist in it.
Any offer of repayment or costs review campaign the bank sent you, with its date.

What closes the door

Arguing only the unfairness of the clause and assuming limitation will sort itself out. It is now the only ground the bank fights on, and it must be occupied from the first pleading.
Accepting the date of the deed as the starting point because the defence says so. Article 1964.2 counts from when performance can be demanded, and that has to be established, not assumed.
Throwing away old claims. An email sent years ago to the customer service department can settle the entire case without any argument about consumer knowledge.
Signing a partial settlement returning some of the costs with a waiver of the rest. That waiver will be raised later and closes off the items not recovered.

The law that applies

Art. 1964 CC. Sets twenty years for the mortgage action and five years for personal actions with no special period, counted from when performance of the obligation can be demanded, and states that in continuing obligations to do or not to do the period starts each time they are breached. Its consolidated text refers to the fifth transitional provision of Law 42/2015 for relationships already in existence. BOE-A-1889-4763
Art. 83 TRLGDCU. Declares unfair terms void of full right and treats them as not written, with the contract surviving if it can stand without them, and adds that terms incorporated in a non transparent way to the detriment of consumers are equally void of full right. Hence the declaration of nullity is not subject to a time limit, unlike the claim for the money. BOE-A-2007-20555
Art. 82.2 TRLGDCU. Provides that individually negotiating some element or one isolated term does not exclude the rules on unfair terms from applying to the rest of the contract, and places on the trader who claims a term was individually negotiated the burden of proving it. It is the evidential rule invoked against the bank's assertions. BOE-A-2007-20555

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions

From exactly when are the five years counted?

Article 1964.2 of the Civil Code says from when performance of the obligation can be demanded, and does not point to the date of the deed. In an obligation to restore arising from a void term, the position defended is that the moment arrives when the consumer could know the term was unfair, a point that must be proved by whoever pleads limitation.

My mortgage dates from 2009. Is it automatically too late?

No. The age of the deed does not by itself fix the starting date. Moreover, the consolidated text of article 1964 refers to the fifth transitional provision of Law 42/2015 for relationships already in existence when the period went from fifteen years to five, a regime reviewed case by case according to the dates of your loan.

The bank says that since 2015 everyone knew they could claim

It is the centrepiece of their defence and must be met with a demand for proof. Diffuse social awareness, fed by news reports or published judgments, is not the same as the knowledge of the individual consumer. The judgment of the Court of Justice of the European Union of 25 January 2024, cases C-810/21 to C-813/21, is the reference set against that reasoning.

If the term is void of full right, why does anything prescribe at all?

Because they are two different things. The nullity of the term, which article 83 TRLGDCU makes nullity of full right, is not subject to any period. Recovery of the money paid is, because it is a personal restitution action governed by article 1964.2 of the Civil Code. A term can be declared void and it may still be argued whether the sum is repayable.

Does a claim I sent through the bank's web form count?

It does, and it can be decisive. An out of court claim interrupts the count and reopens the full period from that date. What matters is being able to evidence it: the submission receipt, the file number the bank assigned or the reply you were sent all serve as proof, even if the form itself was not kept.

This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.