Don’t leave your brain at Baggage Check – In
I have to say that I never cease to be surprised at some of the unpalatable pickles that ex-pats get themselves into when buying property. Experience suggests that the single major contributory factor isn't the language barrier or third party corruption, alleged or otherwise – no, the primary reason is that some people just leave their brains at North Terminal baggage check-in and gaily fly forth without seeking reasoned legal advice from a competent, independent lawyer who speaks your language!
Heaven only knows why this should be the case. I can but surmise that some are readily suggestible and persuaded that 'No one really needs lawyers in Spain for purchasing property.' By way of riposte to such straw man thinking, let me be short and to the point – total tosh and utter nonsense.
Indeed, when giving conveyancing and planning law talks to ex-pat communities, I often ask for a show of hands as to who bought or knows someone who bought a property in Spain without a lawyer…invariably a sprinkling of hands goes up…before finishing my question '…in the UK?'. Not a single hand remains aloft. A bit mean of me, perhaps – but it is the singular most effective way of emphasising that you should always safeguard your interests and money by instructing an independent lawyer to act for you throughout the contract, conveyancing and completion process.
Having said that, experience similarly suggests that some remain deaf to my entreaties and forge ahead with, quite probably, the biggest single investment they will make in their life with counsel neither in their ear nor by their side. Having said this, I set out below a compraventa checklist or, if you will, a self-help guide so that at least you are cognisant of a couple of the key compraventa Do's so that hopefully you may avoid some costly Don'ts.
As stated, engage a lawyer who is wholly independent of the seller, developer or estate agent as only then can you truly rest assured that your interests before, during and after purchase are properly represented. Indeed, some of you may be familiar with the developer's sales-pitch – 'Buy an apartment and get free independent legal advice'. Yeh, right! By definition, given the conflict of interests, it can't be 'independent', it won't be 'free', it's questionable just how 'legal' it will be and calling it 'advice' is a semantic, but probably inaccurate, interpretation of the reality.
Before signing any contract or paying any money, you (or your lawyer) ought to consider two crucial documents. First, an up to date nota simple which is a summary of the key points as lifted from the registered title deed (escritura pública), commonly known as the escritura de compraventa.
Simply put, the title deed, or escritura, is the Holy Grail of Spanish property law. Among other things, the escritura and, or nota simple will confirm the owner(s) of the property, whether it's urbana or rustica, where the property is, how big it is, whether there is a house or ruin thereon, how big it is, whether it has a natural water supply, what easements are attached and reveal any outstanding debts or charges as are currently registered to the property.
It pays to be know that the chap to whom you paid the 10,000€ cash deposit is the actual owner. It pays to be sure that the house is legal and if not, whether it can be readily legalised. It pays to know that your 4,000m² rustica plot will never be granted planning permission due to lacking its own water supply. It pays to be know that any mortgage or debts attached to the property need to be cancelled in the proper manner, otherwise you'll be buying more than you bargained for!
Second, the vendor should provide you (or your lawyer) with the property's Land Registry (Catastro) reference number (referencia catastral) so that you may cross-examine the Land Registry records with the Property Registry's.
Whereas the Property Registry provides proof of ownership, the Catastro provides proof as to the property's precise dimensions, measurements and location. In an ideal world, the two Registries would be in the same building, enjoy open channels of communication and generate deeds and plans that neatly mirror and match the other every time. Well, they don't – at least not most of the time!
Once you (or your lawyer) have identified any discrepancies between the Property and Land Registry records and any other issues as might give cause to raise an eyebrow, you will be able to gauge what procedural steps are needed to correct the same. Whereupon your lawyer (or yourself) should ensure that all the material points are incorporated into the contract of sale-purchase as express pre-conditions of sale with correlative penalty clauses for non-performance.
A typical and relatively straight-forward example would be where the escritura states that the property measures some 2,500m² whilst the catastro says that it measures some 3,500m² – they cannot both be right, although it is similarly correct to say that it is not unknown for them both to be wrong. In such circumstances, your lawyer should stipulate that the vendor rectifies the discrepancy prior to completion and is responsible for all attendant costs, fees and taxes – which could easily top 5,000€ plus.
If you are buying a new build property, you will wish to confirm that it was built legally and has the appropriate licences and guarantees to prove it. It is essential that you be given the Certificate of New Works, Licence of First Occupation as well as the utility certificates (boletins).
As with most things in life, the key is in the detail and Spanish conveyancing is no different. Only if you are fluent in the Spanish and truly knowledgeable in Spanish property law could I justly advise that you fly solo – as the risks are simply too great and numerous to truly justify such misplaced profligacy.
If you wish more information on this particular topic or would like to discuss any matter raised therein, contact
Reyes Gomez Llorente, De Cotta McKenna y Santafe, on 952 527 014. Offices in Mijas Costa, Coín, Nerja, Granada & Tenerife.
De Cotta McKenna y Santafé
Calle Diputación, 6-2º-A
29780 Nerja
Málaga
Spain
Tel.: (+34) 952 52 70 14
Fax: (+34) 952 52 34 28
website: www.decottalaw.com
De Cotta McKenna & Santafé, English solicitors, and lawyers, and Spanish Abogados, in Marbella, Andalusia, Spain