The legal process when buying a home in Spain

You have found your ideal home in the sun and after careful consideration you have decided to buy it.

Now you will need to follow a significantly different legal process from the one you may be familiar within in the UK. Below is a guide to the process involved in buying a resale, or second-hand, home. The procedure for buildings under construction is different.

Many Spaniards choose to buy and sell without using a lawyer, but this would be risky for you as a foreign buyer. We recommend that you contract an independent English-speaking lawyer who will protect your interests – in the same way as you would when buying a home in the UK.

Escritura

You, or your lawyer, will want to be satisfied that the apparent owner is the legal owner and that the property is free of unpaid charges, taxes, or mortgages.

The seller must be asked to produce:

·         a publicly registered title deed or escritura publica

·         a certificate from the local property registry – nota simple informativa – that shows ownership and details of any mortgages or other charges against the property

·         a paid local property receipt or impuesto de bienes inmuebles (IBI). In addition, you would be well advised to obtain a copy of the most recent water, electricity, telephone, and rubbish collection bills

·         If you are buying a flat or condominium you will also want a copy of the regulating statutes and a paid receipt for the community charges. If you are buying a house your lawyer will want to check that the housing estate has planning permission or a plan partial at the town council or ayuntamiento.

·         If you are buying a plot of land, your lawyer will want to see a certificate stating that a house can be built on the land.

Curiously, Spain has two quite separate property registers. The registro de la propiedad focuses on who owns a property and who has a charge over it. A second registry, termed the catastro, focuses on the exact description, location, and boundaries of the property. Inevitably, differences have arisen and a careful buyer – or his lawyer – may ask for copies of both. The authorities are now making an effort to bring these two registers into line and since 1997 all property transfers must make a reference to the referencia catastral. 

NIF

You will also be required to have a tax identity number or numero de identificacion fiscal (NIF) within 30 days of  the contract being finalised. Your lawyer, or local gestor, will be able to obtain one for you.

The first step on the ladder is a private contract signed between the buyer and the seller. While this is not legally necessary it is very common – especially in urban areas. When the contract is signed it is usual to pay a non-refundable deposit of around five or ten per cent – termed señal or arras. The deposit is usually held by the seller. There are two types of deposit. In the first type, termed arras de desistimiento, the buyer can pull out of the purchase and lose his deposit. The seller can also change his mind, but he must then pay the would-be buyer twice the amount deposited. Another type of deposit is non-renunciable and termed arras confirmatorias. In this case, the contract is binding on both sides.

At the notary

The second step in the process is paying the outstanding money, signing the legalised contract or escritura de compraventa, and obtaining the keys. This step is almost always performed in the office of a notary. The notary is a much respected public official who impartially ensures that the contract has been signed, the money paid, and that both parties are aware of their tax obligations. The notary represents neither the seller nor the buyer and can help in authoritatively resolving any doubts or questions you may have. As the buyer, you have the right to select which local notary is used. If the notary does not speak English, then you will need the help of a translator or your lawyer.

The notary limits himself to ensuring that both parties have correctly signed the contract and understand its contents. Contrary to popular belief, he cannot guarantee the accuracy of any statements contained in the contracts.

At the end of the meeting in the notary’s office you will have shaken hands with everybody involved and become the legal owner of the property. If you are unable, or unwilling, to be in Spain for this crucial meeting then you can make a poder at an earlier date and give power of attorney to your lawyer.

There is a final step. Immediately after your meeting in the notary’s office, he will send your escritura de compraventa to the property registry to be registered and converted into a public document or escritura publica. If there are irregularities of any kind, the property registry may decline to register the document until the problem is resolved. For this reason, you or your lawyer should request a nota simple informativa or escritura publica from the property registry a few months after the purchase is completed.  

Information on costs and taxes involved in buying property can be found at here.

Information on whether  the real value of the property should be declared can be found here.

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For more information on Valencia and our range of property go to:

www.rawlinsholden.co.uk or in Spanish at www.rhinmobiliaria.com

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