Spanish Solicitor
Are you looking for a Spanish Solicitor? In Spain a solicitor is called an Abogado
(pronounced Abo-gar-do). They are often refered to as 'lawyer'. Which is simply
the American term used to describe a Solicitor. On this page is a brief overview
of the legal side of buying a property in Spain. However, you should always take
the advice of your Spanish Lawyer.
Buying a Spanish Property
How to Avoid Dangerous Mistakes Buying a Spanish Property
When people look to buy a property in Spain it is understandable that they usually only focus on finding a suitable property, and do not spend much time finding a good independent lawyer to protect their interests in the purchase, but this can prove to be an expensive mistake! The following are the 3 most common mistakes that buyers make:
- They sign reservation contracts and hand over deposits to estate agents without first having their lawyer check the agent’s contract.
- They use a lawyer recommended by the estate agent or the developer.
- They fail to spend time looking for their own independent Lawyer / Solicitor before they start looking for a Spanish property to buy.
Why is it Important to Avoid these Mistakes?
When a buyer finds a Spanish property that he or she is interested in buying through an estate agent, it is common practise for the agent to try and get them to sign a reservation contract, and hand over a deposit of a few thousand Euros. Do not sign this contract or part with any money without first having your own independent lawyer check the contract. The reason for this is that this contract may well bind you to detrimental conditions in the main purchase contract for the property. There may also be no term in the reservation contract entitling you to the return of your deposit should there be anything legally wrong with the property. In the worst case scenario you could even be signing a contract promising to buy the property before your lawyer has had a chance to carry out any legal checks! Do not fall victim to the agent’s sales pressure and tell the agent to fax or email the contract to your lawyer so he can advise you whether it’s ok to sign.
Understandably foreign buyers of properties in Spain do not normally know any lawyers or law firms in Spain, and so when their estate agent or the developer recommends a Spanish lawyer to them they normally accept this recommendation. This can be a biggest mistake a buyer can make because that lawyer cannot be impartial if he or she is getting a lot of business from the agent. As the lawyer may be reluctant to point out to the client problems with the property, it’s planning status or the contracts, for fear of the sale falling through. In the UK all Solicitors are trained to warn their clients of the dangers of using a Solicitor that could be acting potentially for both the seller and the buyer, due to the danger of a conflict of interest. There have been cases of lawyers in these situations advising their clients to complete on properties which they subsequently discover do not have full planning permission!
Before you start your Spanish property search spend some time looking for an independent Lawyer/Solicitor who does not have any connection with estate agents or developers. When you find an independent lawyer in Spain please ensure that you ask to see evidence that they are in fact registered licensed lawyers. As it is not uncommon for buyers who have completed on a property, and subsequently find they have legal problems, to then make legal enquiries through an independent lawyer, only to discover that the person who had been acting for them either was not a registered lawyer, or even in some cases not a lawyer!
If you follow these 3 simple steps you considerably reduce the risk of having any legal problems with your purchase of a property in Spain. This article was written by Des Sparkes LLB. LLM. who is a Solicitor based in Marbella in southern Spain. If you would like further information on buying property in Spain please contact him at www.SparkesLawyers.com. This independent Spanish Lawyers website also contains further useful information for buyers of Spanish property www.sparkeslawyers.com
How can we be sure the Spanish Solicitor is competent and qualified?
You should engage a reputable local solicitor in Spain before you embark on your
search for a property. Please do not engage with a Gestor to manage the legal process
of buying your home. The Gestor has an important and useful role in dealing with
many aspects of Spanish bureaucracy, but property buying is not within their area
of expertise. In the same vein, if you are referred to a solicitor by an estate
agent, you MUST ensure that he is acting exclusively for you and is not also acting
for the property developer or vendor.
How much will we pay in Spanish legal fees?
Your initial advisory meeting with the Spanish solicitor is free. Most Spanish lawyers
fees are all based on the same formula, i.e. between 1 % and 1.5% of the value of
the property, depending upon the complexity of the transaction. In exceptionally
complex transactions, you will be informed in advance of engagement, which will
allow you to take a second opinion before you part with any fees.
When do we know that we have legal title to our Spanish property?
The title deed is granted and ratified by the Public Notary, and must be signed
in his presence by both the seller and the purchaser. If you are buying the property
in joint names, but cannot be there in person, you can appoint a power of attorney
to another person to sign on your behalf. The next stage is to register the Escritura
de Compraventa with the Land Registry office. It is crucial that your solicitor
in Spain examines and confirms the history of the property with Land Registry to
ensure that there are no outstanding charges, mortgages or debt attached to the
land or the building. In Spain, charges and debt are associated primarily with the
property, much less with the individual. When the title deed is formally registered
with Land Registry, you are the proud owner of you new home in Spain.
Are there any other issues we should be aware of?
Yes. Almost inevitably, you will have conversations with developers and estate agents
on the subject of 'Declared Value' Vs 'Real Value'. The issue here surrounds the
payment of Tax on the property sale, i.e. the lower the declared value of the property,
the less tax you and the seller will pay. Please be careful as you may very well
pay dearly later on when you sell the property, as the Capital gains tax is calculated
on the profit you make when you sell your home. If at that time, the local authority
makes a ruling on the real commercial value, you will be caught for the tax on the
difference between the 'lower declared value' when you purchased the property and
the officially declared value.
In all such instances, you should always take the advice of your Spanish Lawyer.
Renting a Property in Spain - Spanish Legal
Spanish Legal - Rental contracts
The following provisions must be contained in the rental contract:
- Description of the Spanish property
- The contract term
- Details of landlord and tenant
- Amount of rent and payment terms
- Any other Spanish legal provisions that both parties agree
Spanish Legal - Notary
The rental contract should be made before a notary and recorded at the Spanish Property
Registry (Registro de la Propiedad). You may rent the property for a long or a short
term. The distinction is very important as Spanish law provides with less rights
to short-term tenants. Both parties agree the term for which the property will be
rented.
Short-term rental contracts in Spain
Short-term rental contracts in Spain (contrato de arrendamiento de temporada) require
that the tenant vacate the property when the contract ends. This type of contract
is normally used for Spanish holiday rentals and may run for up to one year. The
short-term condition must be specified in the contract.
Long-term rental contracts in Spain
A long-term rental contract in Spain has a duration exceeding one year. If the contract
does not exceed five years, it will be renewed automatically upon its expiration,
unless the tenant is not willing to renew it. The landlord is obliged to accept
these renewals, except when he had previously stated in the contract that he needs
to recover the property for his own use before completing the five-year period.
After the five-year term, the owner may rescind the contract, provided he had given
the tenant 30 days' notice before the end of the contract, otherwise the contract
will be automatically renewed for three years, unless the tenant refuse this renewal.
When the contract does not stipulate a rental period, it will run for one year.
In all such instances, you should always take the advice of your Spanish Lawyer