Hello all
We're about to buy a house with a few long-lost relatives knocking about (actually, not knocking about at all...in fact knowhere to be seen)...which seems to be the norm in our area. The proportion of the house that they would ever have any claim to is very small and we have been assured that our contract will state that any legal cost and other costs arising from long-lost relatives showing up after the sale of the house will be met by the vendor. He also said that long lost relatives are only allowed to make a claim on a house that's been sold (without their power of attorney) for up to two years after the sale.
The house has never been registered. The vendor needs to go before a notary with witnesses and other documents to have a new escritura drawn up stating that the property is hers. Then, she can apparently sell it to us.
We have now walked away from a number of houses in the village with similar escritura problems. Due to the low literacy rates here, it's a very common thing. Most properties haven't changed hands for over fifty years and the rules just seem to be different.
Our lawyer HAS stated that there is a risk of long-lost relatives crawling out of the woodwork claiming a share of the house but he said the risk is very small and exists with 90% of houses sold in this area. He aslso stated that the extra clause in the contract will give us some protection, as will the two-year time limit. But, I've never heard of the two year time limit before. Anyone know any different? And anyone have any idea whether an extra clause in the contract (sending all long-lost relatives back to the vendor with their begging bowls) actually offers us any protection at all?
Cheers in advance
kelly
property ownership and long-lost relatives
It could be that the long lost relative is not really lost and will be lurking when the purchase is completed. Also make sure the 2 year clause is not overwritten by spanish law, eg. have the relatives taken all steps to trace their long lost family? They could be trying to cheat him/her out of their share, not unknown.
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nevada smith
Nevada, on occasion, you offer very good advice, so it seems you know your stuff. Why not stick to this instead of grabbing every opportunity to question and attack the members of this forum? I appreciate this forum can be frustrating at times, with a number of multi-ID, up-for-an-argument, members and guests...but please don't assume that every posting falls into this category.
The house I'm talking about is the very same one...we're still trying to buy it! We involved the architect at the earliest possible stage to ensure that the plans we had for the house were possible (this had a bearing on whether we wanted the house or not). And, lo and behold, the house has a lemon tree in the garden!
So you see, it IS possible to have an architect, a proyecto, long lost relatives and a lemon tree in the mix...in fact, I'm sure it's a very common list of ingredients in the wonderful world of Andalucian house sales.
By the way, now that you can see my query was bona fide, do you actually have any advice to offer? I thank you in advance.
The house I'm talking about is the very same one...we're still trying to buy it! We involved the architect at the earliest possible stage to ensure that the plans we had for the house were possible (this had a bearing on whether we wanted the house or not). And, lo and behold, the house has a lemon tree in the garden!
So you see, it IS possible to have an architect, a proyecto, long lost relatives and a lemon tree in the mix...in fact, I'm sure it's a very common list of ingredients in the wonderful world of Andalucian house sales.
By the way, now that you can see my query was bona fide, do you actually have any advice to offer? I thank you in advance.
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Guest
Kelly, are you serious about this?? i wouldn't touch it with a bargepole, it's fraught with potential legal nightmares.
I really don't know what comes over people in circumstances such as this, ask yourself a question, would you buy a house in the UK where the potential for disaster is as blaringly obvious as this??
Incidentally, I beleieve any decent lawyer would tell you to walk away, quickly!!
I really don't know what comes over people in circumstances such as this, ask yourself a question, would you buy a house in the UK where the potential for disaster is as blaringly obvious as this??
Incidentally, I beleieve any decent lawyer would tell you to walk away, quickly!!
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Guest
Kelly4, Syd Barrett suggested you walk away from this, I'll go one better and tell you to run, I'm lawyer in California, married to a Spanish woman and we will be moving to Seville in less than three months, my knowledge of Spanish law is limited but I do know enough to state quite categorically that any lawyer, anywhere in the world who cannot guarantee the integrity of his work is not worth bothering with, ask him to do an exhaustive search for any potential bloodsuckers, which means ads in papers etc.
As I said if he can't guarantee you secure and safe purchase why use him, that's his job, don't put up with half assed so called professionals, remember he works for you and as such his professional integrity requires that he give you the best service he can, tell him that you want solid guarantees or don't engage him.
I would also be very wary of the architect, remember you'll still have to pay him if the deal turns turtle, andhe knows this.
I know this is negative advice and not at all what you want to hear, but I won't lie to you about this, it stinks!!
Ps, on a friendly note, try looking at this deal without the lemon tree!!
As I said if he can't guarantee you secure and safe purchase why use him, that's his job, don't put up with half assed so called professionals, remember he works for you and as such his professional integrity requires that he give you the best service he can, tell him that you want solid guarantees or don't engage him.
I would also be very wary of the architect, remember you'll still have to pay him if the deal turns turtle, andhe knows this.
I know this is negative advice and not at all what you want to hear, but I won't lie to you about this, it stinks!!
Ps, on a friendly note, try looking at this deal without the lemon tree!!
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nevada smith
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Guest
Sorry Nevada, my profile's really just a joke, I really am a lawyer, unfortunately, my wife and most of my friends reckon I look like a trucker, actually I probably do, they also say I dress like a trucker, although I'm not familiar with current dress codes, I posted the trucker bit as a joke because my wife has been beating me up for about four years now to move back to Spain, she's from Utrera, Last summer I said yes but there is no way I will be parted from my new truck.
I don't drive a car, not even my wifes car, I drive only trucks, I like trucks and it's my right to drive one if I like, so my friends all have special names for me, Breaker one nine, good buddy, Bubba etc, I've heard them all!! anyway that's the story about the profile, and what's more because I'm a lawyer you can trust me, despite what others may think!!
I don't drive a car, not even my wifes car, I drive only trucks, I like trucks and it's my right to drive one if I like, so my friends all have special names for me, Breaker one nine, good buddy, Bubba etc, I've heard them all!! anyway that's the story about the profile, and what's more because I'm a lawyer you can trust me, despite what others may think!!
Thanks for the advice.
I'll admit I was kind of hoping for a few "yes, the same happened to us and it all worked out wonderfully" replies...but deep down I knew that was unlikely.
We've lived in the village for over a year now. We have a lot of friends here and they are all helping us out with this. They all know the vendor. They are all wondering what on earth were so worried about...it's just the way things are done here, is their view. Yes, all very well for them to say that when it's our money on the line, I know, but these are people we have come to trust. And yes, if I was reading my own post I'd probably be asking myself what kind of fool would even consider such a purchase. We seem to have slipped into the local way of thinking. But I'm not really sure you CAN make comparisons with the UK all the time. The system is different here, especially in small rural communities.
Breaker, the lawyer has said that the notary will have to go through a process of ads in papers, notices a local town hall etc. to track down any relatives living locally, before a new escritura can be drawn-up in the vendor's name. It was never suggested that the notary would do this without proper documentation. The lawyer has NOT offered guarantees, unless we go down a different route of taking the case before a judge, waiting about a year and spending a fortune on legal fees. He has admitted there is a risk involved in the notary route but has said that he considers it negligible.
So, we now have to consider whether we walk away....again.... in the hope that one day a property will come up for sale in the village with no legal hitches, or whether we stick with this one and take the longer, more expensive legal route.
Yes, I've certainly left my brain somewhere along the line between London and the Andalucia mountains, haven't I?
I'll admit I was kind of hoping for a few "yes, the same happened to us and it all worked out wonderfully" replies...but deep down I knew that was unlikely.
We've lived in the village for over a year now. We have a lot of friends here and they are all helping us out with this. They all know the vendor. They are all wondering what on earth were so worried about...it's just the way things are done here, is their view. Yes, all very well for them to say that when it's our money on the line, I know, but these are people we have come to trust. And yes, if I was reading my own post I'd probably be asking myself what kind of fool would even consider such a purchase. We seem to have slipped into the local way of thinking. But I'm not really sure you CAN make comparisons with the UK all the time. The system is different here, especially in small rural communities.
Breaker, the lawyer has said that the notary will have to go through a process of ads in papers, notices a local town hall etc. to track down any relatives living locally, before a new escritura can be drawn-up in the vendor's name. It was never suggested that the notary would do this without proper documentation. The lawyer has NOT offered guarantees, unless we go down a different route of taking the case before a judge, waiting about a year and spending a fortune on legal fees. He has admitted there is a risk involved in the notary route but has said that he considers it negligible.
So, we now have to consider whether we walk away....again.... in the hope that one day a property will come up for sale in the village with no legal hitches, or whether we stick with this one and take the longer, more expensive legal route.
Yes, I've certainly left my brain somewhere along the line between London and the Andalucia mountains, haven't I?
Kelly4... There are hundreds maybe thousands of properties in villages all over Spain with similar situations as the one you wish to buy, and a lot of which can be purchased after going through a series of extra paperwork.
This in your written contract should protect from relatives. I personally know of a few village and country properties that have been purchased in this way with success. It seems that this house is old, and on urban land, so will not be pulled down due to illegal building...and not all lawyers are bad...we have been assured that our contract will state that any legal cost and other costs arising from long-lost relatives showing up after the sale of the house will be met by the vendor
No muerdes la mano que te da de comer.
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Beachcomber
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Kelly, do you know how desperate the sellers are for a sale and what is the likelihood of them selling to someone else?
It is for them to get there own house in order prior to the sale. Not you subsequently. They need to 'go down the notary route' and obtain full legal title to the property before they sell either through the notary or through a court process known as 'tercero de dominio'
How can anyone be sure that the sellers are still going to be around in a few years time if and when some long lost relative climbs out of the woodwork and even if they are who is going to make them pay any resultant legal fees?
Do you really want to be looking over your shoulder for the next few years wondering if anyone is going to turn up to lay claim to part of your property?
In fact, the only persons who could lay claim to the property subsequent to the sale are those named as owners in the current escritura who do not sign before the notary at the time of the sale. Once an escritura is issued in your name any previous contract is superseded so any special clauses contained in it would mean nothing unless they were also included in the escritura but if the current owner goes through the proper legal process to have the property registered in her name any long lost claimants will be her responsibility anyway. You would need to ensure that there was no obscure wording in the escritura which would give her a way of putting the responsibility back onto you.
If I were in your position and really wanted the property I would pay a small (very small) deposit on the condition that it was returnable if the current owners were not able to sort out the legalities within a stated amount of time.
It is for them to get there own house in order prior to the sale. Not you subsequently. They need to 'go down the notary route' and obtain full legal title to the property before they sell either through the notary or through a court process known as 'tercero de dominio'
How can anyone be sure that the sellers are still going to be around in a few years time if and when some long lost relative climbs out of the woodwork and even if they are who is going to make them pay any resultant legal fees?
Do you really want to be looking over your shoulder for the next few years wondering if anyone is going to turn up to lay claim to part of your property?
In fact, the only persons who could lay claim to the property subsequent to the sale are those named as owners in the current escritura who do not sign before the notary at the time of the sale. Once an escritura is issued in your name any previous contract is superseded so any special clauses contained in it would mean nothing unless they were also included in the escritura but if the current owner goes through the proper legal process to have the property registered in her name any long lost claimants will be her responsibility anyway. You would need to ensure that there was no obscure wording in the escritura which would give her a way of putting the responsibility back onto you.
If I were in your position and really wanted the property I would pay a small (very small) deposit on the condition that it was returnable if the current owners were not able to sort out the legalities within a stated amount of time.
Hello and thanks again for your advice.
Silver, thank you for the encouraging words. Much needed!
Beachcomber, thank you too. As always, sound advice. we're not that keen onthe tercero de dominio route because the lawyer feels the outcome will be the same as the notary route but much more longwinded and expensive.
I'm pretty sure the vendor won't sell to someone else because she's not ina position to. The way I see it, she has to sort out the papework no matter who she sells it to. We haven't paid a señal because the lawyer advised us to pay nothing yet...as an incentive for the owner to get the paperwork in order quickly. if she pushes us, we'll pay a small amount, but witha contract stating all paperwork needs to be in order within a certain timeframe.
Apparently, the vendor will present her case to the notary, with witnesses and documents (e.g. certificado catastral in her name, etc.) and current escritura. I believe the current escritura is in the name of the venodr's father, who has since died (intestate). The long lost relatives are the children of the vendor's stepbrothers, who have all died too. The vendor has said that these children have told her they want nothing to do with the property. We have told her we won't proceed unless we have this in writing.
I'm not 100% sure who is actually listed in the current escritura. thanks for pointing that out. I will make sure our lawyer checks this. you mentioned that only these people are allowed to make any claim if not presentat the signing of the new escritura. But what if they're dead (and again, I assume intestate). Does the right automatically pass to their children and/or any of their relatives?
Katy, I think they DO all have long lost relatives. It was an EXTREMELY poor village not so long ago and about half the population upped sticks and moved further north and abroad. Plus, most of the population were illiterate, probably until the 50's, so a lot of houses have no paperwork at all. People have sold bits and pieces of their houses..like the odd upstairs bedroom, or the garage at the end of their garden, to neighbours with little more than a handshake. Believe it or not, I have been told the house we're after is one of the less complicated ones!
Again, thank you all for your advice. I will keep you posted and do please let me know if you come across my brain somewhere along the road from Malaga airport to Cordoba.
Kelly
Silver, thank you for the encouraging words. Much needed!
Beachcomber, thank you too. As always, sound advice. we're not that keen onthe tercero de dominio route because the lawyer feels the outcome will be the same as the notary route but much more longwinded and expensive.
I'm pretty sure the vendor won't sell to someone else because she's not ina position to. The way I see it, she has to sort out the papework no matter who she sells it to. We haven't paid a señal because the lawyer advised us to pay nothing yet...as an incentive for the owner to get the paperwork in order quickly. if she pushes us, we'll pay a small amount, but witha contract stating all paperwork needs to be in order within a certain timeframe.
Apparently, the vendor will present her case to the notary, with witnesses and documents (e.g. certificado catastral in her name, etc.) and current escritura. I believe the current escritura is in the name of the venodr's father, who has since died (intestate). The long lost relatives are the children of the vendor's stepbrothers, who have all died too. The vendor has said that these children have told her they want nothing to do with the property. We have told her we won't proceed unless we have this in writing.
I'm not 100% sure who is actually listed in the current escritura. thanks for pointing that out. I will make sure our lawyer checks this. you mentioned that only these people are allowed to make any claim if not presentat the signing of the new escritura. But what if they're dead (and again, I assume intestate). Does the right automatically pass to their children and/or any of their relatives?
Katy, I think they DO all have long lost relatives. It was an EXTREMELY poor village not so long ago and about half the population upped sticks and moved further north and abroad. Plus, most of the population were illiterate, probably until the 50's, so a lot of houses have no paperwork at all. People have sold bits and pieces of their houses..like the odd upstairs bedroom, or the garage at the end of their garden, to neighbours with little more than a handshake. Believe it or not, I have been told the house we're after is one of the less complicated ones!
Again, thank you all for your advice. I will keep you posted and do please let me know if you come across my brain somewhere along the road from Malaga airport to Cordoba.
Kelly
I was under the impression that with Spanish laws of sucession inheritance issues are quite clear.Kelly4 wrote: I believe the current escritura is in the name of the venodr's father, who has since died (intestate). But what if they're dead (and again, I assume intestate). Does the right automatically pass to their children and/or any of their relatives? Kelly
The notion if intestate is not applicable as does not exist in Spain.
If this is the case there will always be a relative unless of course the villagers were all sterile as well as illiterate and then I suppose it would pass to the State.
Mike
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Beachcomber
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Kelly, it is down to the vendor to get an escritura, duly registered in the property registry, which is in her name and her name alone. Once she has clear unencumbered title to the property, with no provisos, wherefores or herinafters, you can proceed with the purchase in the normal way.
Any subsequent claim by descendents or potential inheritors will then be on the proceeds from the sale rather than the property itself and will be her responsibility not yours.
If you have ANY doubts about your lawyer OR his bilingual capabilities make sure you have the draft copy of the escritura professionally translated by someone who has no connection with the village or its inhabitants BEFORE you sign at the notary or, better still, take a translator who is familiar with legal jargon to the notary with you.
Bear in mind that anything stated in the contract is superseded by the escritura once it is signed by all parties. Also bear in mind that a contract is only valid if it is drawn up and signed in Spanish and that any English translation may not reflect the full implications contained in the original. The mis-translation of just a single word or phrase (whether erroneous or otherwise) could completely reverse its meaning and, consequently, your understanding of the situation.
Any subsequent claim by descendents or potential inheritors will then be on the proceeds from the sale rather than the property itself and will be her responsibility not yours.
If you have ANY doubts about your lawyer OR his bilingual capabilities make sure you have the draft copy of the escritura professionally translated by someone who has no connection with the village or its inhabitants BEFORE you sign at the notary or, better still, take a translator who is familiar with legal jargon to the notary with you.
Bear in mind that anything stated in the contract is superseded by the escritura once it is signed by all parties. Also bear in mind that a contract is only valid if it is drawn up and signed in Spanish and that any English translation may not reflect the full implications contained in the original. The mis-translation of just a single word or phrase (whether erroneous or otherwise) could completely reverse its meaning and, consequently, your understanding of the situation.
Breaker, the vendor is not the only descendent. Her father was the owner. He had two children (vendor and a brother) and three step children (vendor's mother had been married before). Apparently, vendor and brother have two thirds of property between them and three stepchildren have one third between them. Don't know how this division has been established. As far as I know, she has a power of attorney for the brother. I think it's the stepbrothers (not sure if two or all three are dead) who pose more of a problem. I need to find out exactly whose names are on the current escritura (whether it's the father or all the children).
Beachcomber, thank you again! More invaluable advice. The lawyer is Spanish. We will indeed hire a translator. My Spanish is very good but, as you might be able to gather from my vague desciptions of the family set-up, I do miss things and I really don't want to miss a single word when it comes to the escritura.
Beachcomber, thank you again! More invaluable advice. The lawyer is Spanish. We will indeed hire a translator. My Spanish is very good but, as you might be able to gather from my vague desciptions of the family set-up, I do miss things and I really don't want to miss a single word when it comes to the escritura.
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Guest
Without knowing the original details of the marriage, it's difficult to form an opinion on this, if the mother and father owned the property jointly For example, it's definitely a potential minefield, my meagre knowledge of Spanish law tells me from these bare facts that it's possible that all the children have an equal claim, if the step children are not around it's entirely possible that they don't know what's going on, check, this is your lawyers job, kick his butt!
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Beachcomber
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Breaker, from Kelly's original post I got the impression that he was intending to purchase the property as it stands and accept the risk of long lost relatives or inheritors turning up on his doorstep but I now understand that the current owner is going to get her own house in order by going through a notarial process of getting the property registered in her own name.
Kelly will then purchase the property from her as the sole owner and then register the property in his own name. My point is that this surely renders the question of inheritance irrelevant as far as Kelly is concerned and if anyone should turn up to claim a share once the notarial process has been completed it will be a share of the proceeds of the sale not of the property which will by that time be legally owned by Kelly.
It so happens, in this case, that Kelly knows the history behind the property but it could just as easily happen that someone could purchase a property, having checked that the property is properly registered in the name of the person from whom he is purchasing it with the seller having already gone through a similar process to register the property in his name.
The extract from the property registry would mention none of this but would merely state the name of the owner, the registration details and the fact that there were no mortgages, debts or other encumbrances on the property.
I know the law, especially Spanish law, can be a bit of an ass but I don't see how the subsequent purchaser of a property which has been through a lengthy or contentious process for it to be registered in the name of the seller can be responsible for anyone who subsequently turns up wanting a share.
Kelly will then purchase the property from her as the sole owner and then register the property in his own name. My point is that this surely renders the question of inheritance irrelevant as far as Kelly is concerned and if anyone should turn up to claim a share once the notarial process has been completed it will be a share of the proceeds of the sale not of the property which will by that time be legally owned by Kelly.
It so happens, in this case, that Kelly knows the history behind the property but it could just as easily happen that someone could purchase a property, having checked that the property is properly registered in the name of the person from whom he is purchasing it with the seller having already gone through a similar process to register the property in his name.
The extract from the property registry would mention none of this but would merely state the name of the owner, the registration details and the fact that there were no mortgages, debts or other encumbrances on the property.
I know the law, especially Spanish law, can be a bit of an ass but I don't see how the subsequent purchaser of a property which has been through a lengthy or contentious process for it to be registered in the name of the seller can be responsible for anyone who subsequently turns up wanting a share.
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