Escritura problems?

[Kelly4]

Hi all,

We are finally buying a house (been here over a year now).

The vendor is keen to go ahead with the sale quickly and hasn't asked for any kind of deposit, so we haven't signed a contract of compraventa and haven't needed a lawyer so far.

There WERE some problems with a big discrepancy between the actual size of the property and that stated on the nota simple but we've just found out that this was because the bank's surveyor actually had the wrong nota simple in the first place (!!!).

Anyway, the owner's husband apparently died intestate a few years back. Also, when the owner bought the house (at least ten years ago) one of the vendors kindly signed on behalf of his brother without a power of attorney. The notary is aware of this and has still said that there will be no problem with our vendor signing the house over to us within the next month. Does this sound right or is some bloke going to knock on our door in a couple of years claiming part-ownership and wanting to take up residence in our spare room? Anyone have experience of previous owners crawling out of the woodwork? Or are we safe once it's signed over to us?

Do we REALLY have to involve a lawyer? Just concerned that rather than looking through the escritura and giving us the nod, s/he will want to do all sorts of other stuff...and charge us accordingly. If the notary is happy, isn't this a good sign...or am I just being very naive?

Sorry, loads of questions. Thanks in advance.

Kelly

[jpinks]

We are finally buying a house (been here over a year now).

Congratulations, and welcome to the happy band of residents

The vendor is keen to go ahead with the sale quickly and hasn't asked for any kind of deposit, so we haven't signed a contract of compraventa and haven't needed a lawyer so far.

Not a huge problem in itself, but no-one is bound to the deal unless some paperwork has changed hands.

There WERE some problems with a big discrepancy between the actual size of the property and that stated on the nota simple but we've just found out that this was because the bank's surveyor actually had the wrong nota simple in the first place (!!!).

Given the involvement of a bank, does this mean you are borrowing to buy? If so, they will probably have a lawyer on the job.

Anyway, the owner's husband apparently died intestate a few years back. Also, when the owner bought the house (at least ten years ago) one of the vendors kindly signed on behalf of his brother without a power of attorney. The notary is aware of this and has still said that there will be no problem with our vendor signing the house over to us within the next month. Does this sound right or is some bloke going to knock on our door in a couple of years claiming part-ownership and wanting to take up residence in our spare room?

This does not sound good

Anyone have experience of previous owners crawling out of the woodwork?

Yes

Or are we safe once it's signed over to us?

No

Do we REALLY have to involve a lawyer?

Given the messy paperwork I think you need professional advice. A gestoria *might* be able to sort it out.

Just concerned that rather than looking through the escritura and giving us the nod, s/he will want to do all sorts of other stuff...and charge us accordingly. If the notary is happy, isn't this a good sign...or am I just being very naive?

The notary is happy that he is not doing anything illegal - but remember this - he does *not* represent you, he acts as the legal go-between and creates the contract and has the power to witness the signatures. If you want serious advice on this, go to a gestoria who specialises in property (not a lawyer) and see what they say.
Sid or Beach will tell you more about the ramifications of dying intestate here - it is not straightforward, and the same for the dodgy signature of a previous escritura. Another member of the family might have a claim on the property and you would not even know they exist until it was too late.
You are trying to buy a property from the widow of the owner who did not leave the property specifically to her, and who bought it from someone who didn't sign the escritura. If the owner has any children they might well have a claim, assuming the property does actually belong to the owner and not the previous "vendor" who didn't sign the papers. Does that sound bad enough to make you get professional advice? I hope so.

[El Cid]

Does that sound bad enough to make you get professional advice? I hope so.

I really must agree with Jpinks on this one.

Anything involving Spanish Inheritance law and trying to sort out who owns what is an absolute minefield. You really must get good advice from a Gestor or, if it gets really involved, a lawyer.

Sid

[Beachcomber]

Have you seen a copy of the nota simple? Try to get one that is a historic extract rather than the abbreviated informative note that they tend to issue these days. This will show the complete history of transactions in respect of the property but if we are talking about ten years ago it may be handwritten in a way that is scrupulously neat but totally illegible to an untrained foreign eye.

Get someone who knows what they are doing to translate it for you if you do not have sufficient grasp of the language to be able to understand it bearing in mind that you need to understand the legal jargon and its implications not just the words. Translating words is easy but translating the meaning of the words is rather more difficult

As John says, the notary is not acting for you and sometimes even their judgement can be flawed. It is the property registrar who has the last say as to whether or not a property gets registered. Some are more strict than others but if everything is not just so the registrar is within his rights to refuse to register the escritura regardless of what the notary says.

One would expect that if the bank is going to grant you a mortgage to purchase the property they will have checked that the paperwork is in order but I can assure you that the granting of a mortgage is no guarantee of the legality of the transaction.

Gestors can be of great help in this type of case but if you do have to resort to using the services of a lawyer make sure you find one that is familiar with litigious procedures not just someone who has been to college for three years and managed to fumble his way through to a law degree then jumped on the property conveyancing bandwagon. They are fine for collecting a fee from people who just want to feel comfortable because they think they are using a proper lawyer but are worse than useless when it comes to sorting out a problem.

[costakid]

A solicitor will probally charge about 1% of the purchase price. I can't believe you are thinking twice about not getting legal advice bearing in mind you have potential problems ahead. GET A SOLICITOR STRAIGHT AWAY PLEASE.

[frank]

A solicitor will probally charge about 1% of the purchase price. .

Reading the replies here, it could turn out to be the best 1% you'll ever spend! Unlike the informed commentators here, I know nothing about this subject (and you possibly? ) so I could not imagine risking it without seeking legal advice. And I suspect, deep down, that you know you should be consulting the experts. All sounds a bit iffy to me.

[jpinks]

I would still recommend a good gestoria rather than a lawyer.

[Kelly4]

Hello all

Thanks for your replies. In the UK, we wouldn't think twice about using a lawyer in these circumstances. The difference is that over there, we would be able to find a reputable one very easily!

We are really struggling to get a recommendation that we can trust. The English-speaking lawyers on the coast get such bad write-ups and locally, a few have been recommended but one is already being used by the vendor and the other two were recommended by friends despite the fact that we KNOW they failed to look after our friends' interests during their house sale.

1% is NOT a lot of money for piece of mind...you are absolutely right. But 1% is money down the drain if it doesn't buy piece of mind and/or legal recourse.

Anyway, latest update is that the long lost brother MAY have signed a "Ratification" document shortly after the purchase but nobody can get hold of him to ask where he signed it. The plot thickens....

BTW: Anyone have any knowledge or experience of "Marbella Solicitors"?

Thanks again for your advice,

Kelly

[Beachcomber]

I would still recommend a good gestoria rather than a lawyer.

So would I.

Kelly, I have never known of a notary allowing someone to sign as verbal mandatory if he is part of the selling party. Even if this was allowed to happen the escritura of ratification should be referred to in the nota simple.

Do you have the historical nota simple that I suggested you obtain. I think this is essential to find out what actually happened ten years ago.

I think andalucia.com admin would rather I did not comment on 'Marbella Solicitors'!!!!

[Kelly4]

Hi Beachcomber

'nuff said about Marbella Solicitors. A friend had a brief meeting with them some time back where they were shown all the ins and outs of another client's file (including names). We just wondered whether they deserved the benefit of the doubt and whether this was just a momentary (if monumental) lapse in lawyer/client confidentiality!!!

With regard to the Nota Simple Extensiva. No, we haven't got it yet. The bank has only requested the basic nota simple (although they are aware of the problems with the escritura). I was under the impression that only the owner (or someone with the owner's written permission) could apply for this document. Can we ask for a copy ourselves...or should we leave something for our gestor/lawyer to do to earn their fee?

Cheers,

Kelly

[Beachcomber]

You should certainly be able to apply for this in your own name from the property registry.

[jpinks]

Beach is quite correct - you can walk into the registro and ask for a nota simple extensiva on your property. Take the escritura in case they are feeling a bit officious that day.

You haven't said why the bank is involved, and I assume it is because they are lending you money againts the property. In that case they should have at least a gestoria already working on the paperwork, and you would do well to cross-check with what he/she has come up with. For the man who died intestate there will be a "family book" somewhere, telling you how many children he had, thereby telling you if anyone is posibly going to come out of the woodwork later and try to claim something of the house. Try the Ayuntemiento or the local church where he was married or buried. Even if they don't have the papers, the priest might be able to tell you more.

I can not stress enough how important it is for you to find out about the family because under Spanish laws of inheritance, all children are legally entitled to a portion of the property left. Sid will tell you more about this. Children can come back 20 years later and claim something, but if their name is not in the family book, they can not.

[El Cid]

I can not stress enough how important it is for you to find out about the family because under Spanish laws of inheritance, all children are legally entitled to a portion of the property left. Sid will tell you more about this. Children can come back 20 years later and claim something, but if their name is not in the family book, they can not.

Under Spanish law the estate is divided into 3 parts.

The first third is left to the children in equal parts.

The second third is left to the children in shares that the parent chooses - he could leave it all to one child. The surviving spouse has a life interest in this third and the house cannot be sold while the survivor is alive.

The last third can be left to anyone.

Sid

[Bongtrees]

Under Spanish law the estate is divided into 3 parts.

The first third is left to the children in equal parts.

The second third is left to the children in shares that the parent chooses - he could leave it all to one child. The surviving spouse has a life interest in this third and the house cannot be sold while the survivor is alive.

The last third can be left to anyone.

Sid

What is the situation if there are no children, what happens to that third?

Mike

[El Cid]

What is the situation if there are no children, what happens to that third?

The Spanish always have children

If you have no children or grandchildren then the shared third goes to any living ascendants in equal shares. If there is no surviving spouse either, then half of the estate is shared out to the ascendants.

Sid

[jpinks]

The Spanish always have children

So true - which is why it is absolutely vital for Kelly4 to check out the situation before parting with any money.

[Kelly4]

Hi again

The owner of the house (whose husband died intestate) has only one daughter, who lives with her in the village. It's the PREVIOUS owners that are causing the problems.

We now have a recommendation for a lawyer from our village policeman, who is also a good friend. So we'll see. Keep you posted!!!

Thanks again,

Kelly