Preliminary Steps for buying a property in Spain
This page is aimed to give you tips on buying a property in Spain, so helping you to avoid possible pitfalls.
Once you have found your property a small reservation fee will be required in the region of 1.000 to 6.000 Euros, which is given to the Real Estate Agent to take the property off the market.
However, as a “caveat emptor” no further monies should be given to any person other than a Lawyer as deposit to be held until a prior inspection of the Title and searches have been conducted which show that the property is registered in the name of the Seller free from any charges and encumbrances and without any planning issues.
To avoid any surprises especially when it comes to a New Development property, your lawyer should carry out all the necessary searches.
Carry out a survey of the property especially if it is more that 10 years old, or if it is in disrepair as there may be structural defects or the installations may not work properly.
The Builder of a property in Spain is liable for any structural defects on the property which occur within ten years from the issue of the Certificate of Completion of Works from the Architect.
As from 6th May 2000, the developer must have an insurance policy to cover any structural defect within the said 10 year period.
This gives additional protection to the buyer, who will benefit on taking out title to the property, as the insurance company will require that all the construction works are supervised by a quality control company.
However, after the expiry of the said period, any remedy from the builder will be nonexistent and therefore rectification of any of these potential problems can only be sought from the Seller.
So in case of old properties, the Survey is very important before you the buyer completes the transaction.
Once the searches have been conducted and the outcome is satisfactory, your lawyer should negotiate the terms of the contract with the Seller or his Lawyer.
There are different types of private contracts to be signed at this stage to secure the purchase of the property and take it off the market.
For example deposit contract, contract of purchase and sale, option contract, etc, whereby the purchaser pays a deposit, normally 10% when the vendor agrees to sell the property.
The completion of the transaction is fixed within a particular time scale, usually four weeks when the balance of the purchase is paid and the Title Deeds of the Property is executed and signed by the parties in the presence of a Public Notary.
The choice of the type of contract is something to be assessed by us your Lawyer taking into account your circumstances and the terms of the negotiation with the Lawyer of the Seller.
Please note that not all private contracts will lead to the same consequences as for instance sometimes the Seller may pull out of the transaction paying compensation.
This is usually double the deposit paid to the Purchaser who may find out that although he may obtain certain economic compensation, this is not what he wanted as he was interested in acquiring a particular property on which he has paid a deposit.
If the Purchaser fails to complete the contract on the agreed completion date, the deposit or option price paid shall be forfeited.
Purchase of Property under construction
When purchasing a property off-plan or under construction an obvious risk is added to the transaction, i.e. that for some reason the property is not started or once commenced is not delivered on the agreed date.
In order to protect the prospective purchaser of any of these eventualities the Lawyer should obtain a bank bond or an insurance cover from the developer.
Whereby any amounts handed over by the purchaser plus interest shall be returned to him should the property not be started on a certain date or same is not completed on the agreed date.
In these cases the buyer can rescind the contract and execute the Bank Bond or Insurance Cover in order to obtain his money back plus interest.
The specifications and plans of the property must be agreed and attached to the contract.
If the property is within a Complex, another plan of the Common elements where the gardens and pool must be shown should be attached to the contract.
On the agreed completion date the Title Deeds or Escritura is executed by the parties before a Notary Public and the Title is vested in the name of the Purchaser.
On completion possession is given to the Purchaser and the signing of the Title Deeds in Spain equates delivery of the property to the Purchaser unless otherwise agreed.
In normal conditions the final payment is effected by the Purchaser upon completion before the Notary.
The Tax Fraud Prevention Act creates new obligations when it comes to property transactions. In order for the Land Registry to register a transaction, the Title Deed must include the Fiscal Identification Number (NIF or NIE in case of non-residents) and the means of payment for the purchase price.
If the vendor is a nonresident the law provides for the obligation of the Purchaser to withhold 3% of the purchase consideration to be paid to the Tax Office as a payment on account of the vendor’s Capital Gains Tax liability as result from the sale.
If this retention of funds is not made and paid, the Property conveyed will be affected to the payment of the Capital Gains Tax. This debt will be shown in the Land Registry Books.
The Vendor must produce a Capital Gains Tax Assessment within the next four months from Completion and the said 3% will either be deducted from any Tax to be paid or partially or totally refunded if the amount withheld exceeds the Capital Gain Tax to be paid.
Upon completion the Lawyer must check that all the outgoing expenses on the property are paid up to date and make the corresponding apportion with the Vendor´s Lawyer to this effect.
The Original Title Deed of Purchase will remain in perpetuity at the attesting Notary´s Office who will issue an authorised Copy of the Title Deeds which is the working copy which must be processed by the Purchaser for the payment of the taxes involved and the Registration in the local Land Registry. Payment of the taxes should take place within 30 days of completion and surcharges are applicable there from.
The costs involved in the acquisition of a property in Spain are different if the property is bought from a developer as off plan or as a resale property.
In summary the Purchaser has to allow for an additional 12% to 13% of the Purchase consideration to meet the transfer costs involved in the transaction.
For those who purchase property in Spain is strongly advisable to execute a Spanish Will.
Rafael Berdaguer, lawyer from the firm Rafael Berdaguer Abogados, based in Marbella, Spain. www.berdaguerabogados.com