If you are buying a property and want to avoid future problems, it is advisable to use a spanish property lawyer, who will also help you throughout the whole purchase or sale process, making it much clearer, more concise, and efficient. The services of a lawyer are usually more useful for preventive rather than corrective purposes. The cost of a lawyer’s fees is considerably lower than the costs of problems that could arise from a poorly carried out operation. Below you’ll find a brief explanation of how a lawyer can help before, during and after the purchase of a property.
BEFORE THE PURCHASE:
Legal status of the property
Before purchasing the property, it is essential to know it very well. It could be subject to charges and liens, as well as limitations on ownership. A specialist in real estate property law will be able to find out all these details and act accordingly.
In addition, tax charges make up a significant percentage of the transaction and creating the optimal solution for Mallorca tax, and foreign tax can significantly impact the profit of your project. Together with the associated costs they can increase the selling price by a high percentage. Having a legal and tax consultant as a part of your project will identify your costs and opportunities in advance.
It is essential to get the Land Registry information, where you can check if there are any charges, liens or limitations on the property; the Cadastre, where there may be errors regarding the real and cadastral surface area; the Town Hall, where you can obtain very valuable information on the legal situation of the property and local taxes; the service and supply companies; and the Community of Owners as appropriate.
Spanish property lawyers can also provide collaborators who carry out reports and opinions (Due Diligence) such as architects, surveyors, etc. thatwill advise on licensing, building rights, development, and construction.
One field where it is particularly interesting to use the services of a lawyer is that of the purchase and sale of property by foreign citizens, especially for second homes and property investments.
The lawyer will be responsible for collecting all the necessary personal documentation from the foreign client so that they can carry out the sale and purchase, such as obtaining the NIE, or powers of attorney to represent the client without the client having to travel.
New construction or second transmission?
You should know that the first transmissions do not work the all the same way.
If you are buying a first transfer property (new construction) or off plan, it may be in your interest to investigate the builder or developer beforehand. Your specialist lawyer will be able to inform you about the solvency of the seller and how to proceed if the contract is not fulfilled as stipulated. In these situations, a series of judicial and extrajudicial claims will have to be made, in which you will need the assistance of a lawyer.
In addition, the Spanish Law on Building Regulations establishes a series of additional guarantees that you should be aware of, in case you need to claim for defects in the construction.
Finally, a real estate lawyer can help you analyse all the technical and legal documentation related to the first transfer. This includes the building and first occupation licences and the certificate of occupancy, on the correction of which future registrations in services and supplies will depend.
With regard to successive transfers, your lawyer can help you detect and claim any hidden defects, contractual inconsistencies or future breaches. This includes the possibility that the property may not be suitable for the agreed use. For example, if you buy premises for commercial purposes but cannot obtain licences due to municipal regulations.
They can involve significant amounts in transactions. In addition, these transfers have other associated costs, such as those of the notary’s office, registry, agency, appraisal… and if you take out a mortgage loan you will have to add opening fees, deeds and interest, among others.
This means that you will have to calculate the cost of the sale, which is much higher than the selling price of the property. It is estimated that it can be as much as 12% of the purchase price, so your real estate lawyer will be able to explain to you how to minimise these costs.
The taxes that apply to the purchase of a property depend on whether the property is new or second-hand. In the first case, VAT and the AJD are applied and in the second case, the Transfer Tax (ITP).
If you have to finance the purchase of your property with a mortgage, you will have to pay other costs. Mortgage costs are those associated with the constitution of the mortgage, and include, at least, the notary’s fees, agency fees, appraisal fees and opening fee.
Banks currently participate in these costs, but there may be problems, if necessary.
Furthermore, if your lawyer studies the mortgage deed, he or she will be able to warn you about the legitimacy of the clauses introduced and negotiate better conditions. This will help you to avoid problems related to abusive banking practices, avoid all kinds of irregular practices, examine interest rates, conditions and additional guarantees required by the lender.
The deposit-option contract
It is advisable to guarantee the good course of an operation as important as the purchase of a property. This is why the so-called option or deposit contract is usually used. Your lawyer can review the guarantee contract proposed by the seller to verify that it is a fair deal, or draw it up for you, ensuring that it meets your needs.
The drafting and reviewing of contracts are a service often offered by real estate lawyers.
A deposit works as a signal. They are given when the purchase of the property is agreed, to ensure that neither party backs out. The deposit-option contract is an agreement to pay a sum of money to the seller.
This deposit is usually substantial and therefore very controversial in practice. For this reason, it is important that your lawyer assists you in formalising the agreement and, if necessary, in claiming the deposit.
DURING THE PURCHASE
After checking that the legal situation is in order, you will have to enter to formalise the purchase. This is done by means of a contract of sale, which can be private or be notarised. Obviously, the public deed is the option that offers the greatest guarantees, and your lawyer is in charge of checking that draft and complete it.
It is common for the parties to sign a private contract before granting the public deed of sale. This private contract generates the effect of the sale, so that it has the power to oblige the parties to comply with what has been agreed.
If the purchase is a first transfer, this agreement will be signed on practically all occasions. But in the case of second transfers, it is not only rarer to sign it, but also more problematic. This could lead to compensation actions, for which you will need the assistance of legal counsel. For this reason, it is advisable that you seek the advice of your real estate lawyer beforehand, where he or she will check the powers of attorney and deeds to verify that everything is in order, both the suitability of the clauses and their compliance with the law.
Finally, it is recommended that it be formalised with a notary, by means of a public deed of sale, as this ensures that both buyer and seller have more information, which is reliable and guarantees greater legal security.
On the day the public deed of sale is signed and notarised, the notary will verify that all of the above is in order. The figure of the notary is essential in the process of buying and selling a property, because he is the person in charge of guaranteeing that the contract complies with the law and attesting to its validity.
AFTER THE PURCHASE
If the purchased asset has defects or hidden defects, or irregularities are found in payments, contracts, deeds, etc., you will need to make the corresponding out-of-court claims. Your lawyer can take care of these claims, saving you the trouble of litigation. The lawyer will also recommend and advise on all those services that the new owner needs for the property, whether they are supplies, maintenance services, etc.
Your lawyer will also advise you on yearly taxes to be paid as a non-resident citizen, and also with your yearly municipal taxes as well as moving your appliances to direct debit on your bank account.
It is also common to grant a Will for the assets that are in Spain. This Will is usually only applicable for Spanish assets, bank accounts or whatever the person has in Spain and makes the inheritance process easier for the heirs.