Do I need a lawyer or a notary when buying a property in Spain?

People often mistakenly believe that a Spanish lawyer and a Spanish notary (notario) perform the same function during the property buying process in Spain. It can therefore be tempting to want to save money and just use a notario instead of also instructing a Spanish lawyer when buying a property in Spain. Although this legally possible, it could end up costing you much more in the long-run if you don’t use an independent English-speaking lawyer in Spain for your property purchase in Spain. Here’s why!

A notario is an impartial public official appointed by the state. In terms of their role regarding property purchases/sales it’s their job is to ensure the following:

  • The relevant documentation is prepared according to the law
  • Documentation is completed accurately
  • The relevant parties have the authority to sign the paperwork
  • Collect the taxes due on the property purchase in Spain.

The Spanish notary is an essential and important part of the Spanish property purchase BUT the notario does not act on behalf of the purchaser; they are not able to offer legal advice to either the buyer or the seller, as legally they must remain neutral. Essentially, it’s their job to dot the ‘Is’ and cross the ‘Ts’!

The Spanish notary also only really gets involved at the end of the transaction (completion), by which point it may be too late as binding contracts are signed (and large deposits paid!) much earlier in the Spanish property purchase process. What’s more, unless you are fluent in Spanish, have a translator or the Spanish notary speaks English fluently, you legally won’t be allowed to sign the contract of sale. Usually, your lawyer acts as a translator too.

Independent advice from a reputable lawyer who is not connected to/recommended to you by the seller or estate agent should be sought right from the outset, before you sign or pay anything to ensure your position is fully protected.

If any complexities or issues that materialise, such as planning permission disputes or debt attached to the property, while a notario can inform you of the situation they can’t advise you what to do about it. A Spanish lawyer, on the other hand, is solely acting in the buyer’s best interest to ensure that your property purchase in Spain is as safe and stress-free as possible.

What issues might be encountered when buying a property in Spain?

There are a number of common issues that can arise when buying a property in Spain in respect of which a Spanish lawyer will offer guidance, find legal solutions and negotiate on your behalf. Here are just a few problems that buyer’s in Spain frequently encounter:

  • In Spain, debt can be attached to a property as opposed to an individual. So, there may be outstanding bills owed or a debt or mortgage against the property, for instance, that could be carried over to the new homeowner unless the debt is settled before taking ownership of the property. This is more common in Spain than you might realise!
  • Following the 2008 financial crisis many people lost hefty deposits on off-plan property investments when developers went bankruptor failed to deliver the properties. Often this was due to buyers signing contacts and handing over deposits without proper, independent legal advice. An independent lawyer can offer guidance on how to protect your assets in the worst-case scenario.
  • There are two ‘land registries’ in Spain – the Cadastre and the Registro de la Propiedad and there can be discrepancies between the data held by each, which can cause complications during the buying process.
  • Property boundaries can be unclear in Spain, especially for rural properties. Plus, adding extra buildings or making adjustments to aSpanish property without obtaining the necessary planning permission can be more common. So, while you might think that you’re buying a villa with two acres and a holiday let on the side, the property deeds might state otherwise!

Find out more about things to be aware of when buying a property in Spain here. But don’t let it put you off! As with any property purchase there are always a few ups and downs, buying a property in Spain is no different. These issues can certainly be easily overcome with the help of an independent Spanish lawyer, but without the right legal guidance they can end up leading to costly mistakes.

How will your lawyer help when buying a property in Spain?

Your Spanish lawyer will protect your position as a buyer by doing the following:

  • Provide specialist advice to help you to make an informed decision about the property purchase and make the necessary negotiations regarding any issues that arise.
  • Perform all necessary searches relating to the property to ensure that the land registry records are accurate, that there are no historical planning breaches, that the property has a Licence of First Occupation and more.
  • Arrange Power of Attorney, if needed, so that any documentation can be signed on your behalf if you cannot be present in Spain when the paperwork must be signed.
  • Help you obtain an NIE number, a Spanish identification number that is required by non-Spanish residents buying a property in Spain. If your solicitor is appointed as Power of Attorney, they are able to obtain your NIE number on your behalf.
  • Review/draft and advise upon preliminary contracts to ensure that you are protected as far as possible should anything unexpected arise.
  • Review/draft and advise upon the deed of sale which is necessary to complete a property purchase in Spain.
  • Organise an appointment between yourselves (or your Power of Attorney), the vendors and local notario to complete the property purchase in Spain before the notario. During this appointment the purchase deeds will be signed, registered at the land registry and the fees paid on your behalf.
  • Arrange for the transfer of utilities, such as electricity and water, into your name – which can prove difficult if you’re not fluent in the local language!

What should you look for in a Spanish lawyer?

If you’re buying a property in Spain, it’s crucial that you instruct an independent Spanish lawyer early in the buying process to ensure that your interests are protected. You’re chosen lawyer should:

  • Be independent – By ‘independent’ we mean that they are not linked in any way to the seller, developer or estate agent to ensure that there is no conflict of interest and that your lawyer is acting solely in your best interests. This is so important. Lawyers associated with other parties involved in the property sale, such as the estate agent or seller may find themselves compelled to ensure the sale of the property goes ahead despite any legal complexities that may arise, whether or not this is in your best interests as the buyer.
  • Be familiar with the local conveyancing system – There are 17 autonomous regions in Spain, so conveyancing laws can vary from one region to the next, which is why it’s important that your Spanish lawyer has extensive experience in the local conveyancing system.
  • Speak both Spanish and your own language – It’s easy for things to get lost in translation at the best of times, let alone when you’re dealing with bi-lingual legal matters! So, it’s essential that your lawyer is able communicate easily in your own language to explain everything clearly and well as being fluent in Spanish.
  • Offer guidance before any paperwork is signed – Signing legally binding documentation without knowing what it all means could leave you thousands of pounds down if there are any issues with the property in Spain. Before signing a reservation/purchase contract or paying a deposit a good Spanish lawyer will advise you on this.
  • Be clear about the cost – in addition to the cost of the property there are a number of other additional costs, which should be budgeted for – including lawyers’ fees, land registry, notary fees and purchase taxes. A reputable Spanish lawyer should break down all the associated costs so that you can be clear from the beginning of the process what the full cost it and avoid any nasty surprises at the end!

 

For more information about buying a property in Spain or for assistance from one of our recommended English-speaking lawyers in Spain give us a call on 01244 478 911 or email info@totalbuyingabroad.com.

You can also download our FREE Buying Property in Spain guide here

 

  • Photograph courtesy of Wikimedia Commons, author Emilio J. Rodríguez Posada

 

 

 

 

Article published: June 11, 2018