Buying a property in Spain: Is a Spanish notary enough?
Why an independent lawyer is strongly advised?
This article is the second part of our main paper: “Your ultimate legal checklist of your Spanish property.” Have a look at the bottom of this article for the other parts of this article.
The Spanish notary will prepare the contract and issue the public deeds. He will make sure that the seller and the buyer are correctly authenticated and that the buyer is paying the purchasing price to the seller. Remember what, Alejandro Ruiz-Ayúcar Seifert, Notary of the Notarial College of Madrid wrote: Why buy a property in Spain? The view of a Spanish notary
We are very pleased to share the insights of our local lawyer in Valencia, Sophie explaining what are the added values of an independent lawyer.
“In Spain, the role of the Notary is completely different from the one in other European countries. Although Spanish Notaries also have a duty to advise and inform their clients, their formal obligations are limited and their investigations are often limited to obtaining an extract from the property register.”
Sophie explains further:
“All other steps such as urban and fiscal audits, obtaining certificates of operation of facilities, soil contamination or the lack of co-ownership debts, being an approach left to the goodwill of the parties.”
The legal rights for the property buyers should be detailed in the contracts.
Often, the standard models of deeds of sale of notaries provide a series of waivers to the few rights of the buyer, such as the right of obtaining the certificate of absence of tax debts, the certificate of the president of the community of co-owners or the coordination between the data in the property register with the data in the cadastre and the real data. The only document on which the notary remains firm is the energy certificate since if this certificate is not attached to the act, fines of around 6,000 euros can be imposed both on the buyer and the seller.
This energy certificate, whose qualification often oscillates between E and G is of little importance compared to all the other guarantees which should benefit the buyer.
If you don’t want to protect yourself, you can buy a property in one day in Spain
In fact, to buy in Spain, if you have a NIE (foreigner identification number, read more on that here: Your ultimate guide to your Spain NIE number – NIE Spain) and a Spanish bank check, you could go to the Notary to sign the transaction almost the day of your first visit of the building.
To buy in Spain is very easy. What is not, is knowing what you buy.
As Sophie sums up:
“ it is in this context that the role of the lawyer is essential, not only to collect the documents that will allow you to sign and obtain the registration of the property at your name in the property registry (management procedures) but especially to obtain the documents to which the law does not give you obligatorily access before the sale but whose study is essential in order to know the ins and outs of your purchase (audit procedures).”
Your lawyer will help you to know the ins and outs of your Spanish property purchase
For example: the general assemblies of co-ownership of the last three years in order to check if Extraordinary works are not expected in the near future in the building, the statutes of the co-ownership, energy supply invoices over 12 months to verify that the building is well connected to these services, that the contracts are adequate and the normal consumption, occupancy license to be sure that the property meets the conditions of habitability, the report of stability of the building (report IEE) for buildings of more than 50 years of age in the Valencian community, the urban planning report confirming that your building is not the subject of a land-use plan or is not located in the maritime-terrestrial area that is part of the public domain, etc., etc.
Often, when the lawyer asks all of these documents to real estate agents, they will answer that “all these documents are not necessary to sign”. They are right, as stated above, a NIE and a check are enough to sign, but not to know what you are buying. The lawyer must therefore fight and fight to obtain this essential information for the buyer and to which, for reasons including data protection, he does not have access without the cooperation of the agent or the seller.
Many issues could happen when you buy a property if you don’t do your due diligence properly
Here are some real cases witnessed by Sophie:
- the purchase by a non-resident of a qualified apartment VPO or “Vivienda de Protección Official” as a second residence, while these apartments VPO must be occupied (among other conditions) in principal residence only
- the purchase of a house located in a green space where it is forbidden to build and which can, therefore, be the subject of only small conservation works until it can be destroyed to set up the green space; the purchase of a house in a residential development (urbanization) that is not completed (developer in bankruptcy) and on which lays latent urban charges to complete the installations (sidewalks, power lines, sewers …) that do not appear on the simple note “Nota Simple”;
- purchase of a property that has been acquired by succession or purchase within less than 5 years for a value lower than the cadastral value or the tax value, resulting in a risk of tax requalification that the building will bear, even after resale (until the expiry of the 5 years period);
- the purchase of an apartment whose communal swimming pool must be partially destroyed because it encroaches on the maritime public domain …
That is why your Spanish lawyer will work for you hand in hand with the Spanish notary to make everything watertight.
Your lawyer will make the communication of that information contractually mandatory
These situations can in principle be avoided by examining all the documents concerning the property in a magnifying glass, even if they are not “mandatory”, hence the interest of making the communication of this information contractually mandatory, and to provide the list of these documents from the signing of the contract of “reservation” (which is actually a firm offer from you which, when accepted, will form a private contract of purchase for all effects, and not a “simple reservation”, so be sure to write it very carefully).
Thank you again to Sophie, our legal partner in the region of Valencia, for her insights. Find Sophie and all some of our most active partners and team members in our team secti
This article: “Part I. Buying a property in Spain: Is a Spanish Notary enough? Why an independent lawyer is strongly advised?” is part of an extensive article covering the legal and tax aspects of a property acquisition in Spain:
Introductory paper: Why do you need independent legal and tax partners for your property acquisition in Spain?
Part I. Buying a property in Spain: Is a Spanish Notary enough? Why is an independent Spanish lawyer strongly advised?
Part II. Buying a property in Spain as a foreigner: Are you allowed to buy a property in Spain as a foreigner? Do you need a Visa? Who is buying? How do you finance?
Part III. Legal due diligence on your Spanish property
Part IV. Tax aspects related to your Spanish property: acquisition, ownership and sale of your Spanish property
Part V. Inheritance, Estate Planning and Granting a Will in Spain
For easiness of reading, it is split into five different articles: they could be read one after the other or separately.