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Purchase of a second hand property

1. Previous steps
2. Taxes to pay
3. Fees to pay
4. The sales contract. Signature of the deed
5. Reservation of the second hand property. The "Arras agreement"
6. Builder's liability for construction defects in second hand properties
7. Other points to check when buying a second hand property
8. Buying a property which do not have registered title
9. Buying a property in Spain from a non-resident

1. Previous steps

Once you have decided which property better suits you, it will be very important to check the following documentation before you sign the contract or make a deposit to reserve the property:

  • Ask for a simple note at the Property Registry, in order to obtain the full details of the owner, the exact size of the property, also you can check whether the property is free of charges or is otherwise subject to mortgages, restrictions on use, court orders for seizure …

    In case there exist a mortgage on the property, make sure that the seller justify that the payments are updated, otherwise the bank could seize the property.

  • Check if the house is rented out as the Spanish rental law protects the tenants. For that purpose, make sure that the purchasing contract states that the house is not rented out.

  • In case you buy an apartment, it is advisable to ask the President or Administrator of the community of property owners, whether the monthly community fees are paid or not, since the buyer should pay any pending fees. Notwithstanding, the seller must provide you with a certification, which shall specify that the fees payment is updated.

  • Check on the paid-up municipal real estate tax (IBI- Impuesto sobre Bienes Inmuebles) to make sure that its payment is up-to-date, otherwise the buyer should pay the back tax and penalties.

  • It is necessary to request the Tax identification code(CIF- Código de Identificación Fiscal) and the Spanish Company Register, in case the seller is a private developer. If the seller is an estate agent, he must provide you with its number of estate agent professional association.

2. Taxes to pay

If you are willing to buy a second hand property in Spain, keep in mind there are some taxes you shall pay:

  • The transfer tax (Impuesto de Transmisiones Patrimoniales - ITP) The purchaser must pay this upon signature of the sales contract. Its value is 6 % of the purchasing price, as indicated in the sales contract.

    If the purchasing price declared is much lower than the approximate market value the Tax inspectors could feel that the purchasing price is too low and you may be applied heavy penalties. Your Lawyer can help you in this matter by asking the tax office what is the market value of the property that you are willing to buy.

  • Capital Gains tax on land (Plusvalía): This is the tax on the increase in the value of the property since the last sale : Although it must be paid by the seller, usually both parties agree that buyer pays it.

If you are willing to buy a property in Spain you should first get the tax registration number, the NIE if you are non-resident or the NIF if you are Spanish resident, it allows you to pay the corresponding taxes in Spain.

3. Fees to pay

Apart from the corresponding taxes, you should pay the following fees:

  • Notary: You must pay the notary fees when you sign the deed, these are fixed on official scale and will vary depending on the size of the property.

  • Property Pegistry: You must pay the registration of the deed at the property registry in order the property of the house can be transferred to you. Before going to the registry, you should have paid the corresponding taxes, its receipts must be given to the Register, otherwise you will not be allowed to make the property registration.

4. The sales contract. Signature of the deed

You should sign a puchase contract (Contrato de Compra-Venta) before a Notary, which shall contain the mortgage contingency, and the specifics of it: amount, rate and term, where applicable. The contract must accurately describe the property you are buying, fully identify the seller and buyer, and state that the property is free of charges..

The Notary is the public official who makes this contract to be legal. He certifies that the parties sign the contract properly. He keeps the original document in his files in case any problem could arise later. Note that the notary does not certify that all statements are true, only that the parties have sworn to them.

The purchase deed must be registered with the Spanish Property Registry (Registro de la Propiedad). Once it is done, the title deed (Escritura Pública de Compra-Venta) fully assures your title: the registered contract makes you the owner of the property.

The registration of the house is also important for tax purposes, the real estate tax (IBI tax ) shall be paid every year since you could be fined by the tax authorities.

If you cannot be present to sign the contract, you can make a power of attorney allowing another person to sign it for you, if necessary.

You shall be receiving the keys of your property upon signature of the contract in the presence of a Notary.

5. Reservation of the second hand property. The "Arras agreement"

Let's suppose that you are willing to purchase a property located in Spain, but you need some more time, either to assemble the money, or obtaining the mortgage to pay it, what you can do is make a reservation of the property by signing an "arras agreement".

When you sign this kind of agreement, you are putting-down a deposit to keep the property, the other side of the coin is that you will lose this deposit if you don't complete the sale on the date stated, or that the vendor shall return double the amount deposited, was he finally not to honour the contract in the stated date.

This deposit should not take part of the total purchase price, but it is the price that the buyer gives to the seller for paying the purchase option (opción de compra), since the seller could demand the full amount of the purchasing price in case the deposit took part of it and we renounced to buying the house.

It is advisable to put the deposit into a blocked bonded client account.

You will need skilled legal counsel for this action.

6. Builder's liability for construction defects in second hand properties

If you have problems and construction defects with your newly bought property, remember that you may take the builder, developer and the arquitect to court within 10 years of substantial completion of the home. If your home was built more than 10 years ago, you only have 6 months, after signature of the deed, to claim against the seller for the deffects arisen.

The terms of guarantee for construction deffects applicable to new houses, are also applicable to second hand properties where construction defects had arisen.

7. Other points to check when buying a second hand property

In order to avoid possible problems that may arise later, do not forget to check some points before buying your second hand house. You could find out afterwards that your dream house is illegally built.

You will do well to have a Spanish lawyer handle the following licences and approvals, as they know the ins and outs of the paperwork:

8. Buying a property which do not have registered title

What if the property you are willing to buy does not have registered title?. If you think this might not happen, you are away off base, it actually happens in Spain.

These cases often occur in country houses either because the formers owners avoided in this way to pay transfer taxes and fees, because the owners of the property are various brothers whose family never had registered title, or because the original owner had died without registering the property…

Other things may happen: the property of your dreams can be already registered in the name of a person who no longer claims it because he sold it to someone on a private contract, and this one has never registered the sale…

If you are willing to buy a property which do not have a public title deed (escritura pública de compra-venta), you may establish the title through a process called Expediente de Dominio.

This is a long and complex process which requires court action, and involves publication of your claim in the National Official Gazette. You shall also file a certification at the Spanish Property Registry (Registro de la Propiedad) and the Catastro office (Oficina del Catastro), describing the state of the property and that it is not legally registered.

The Catastro Office is the Spanish official office which keeps in its files the Spanish plots description and its assessed value for tax purposes.

The court's decision shall determine the title of your property

These are only general guidelines and not definitive statements of the law, all questions about the law's applications to individual cases shall be directed to a Spanish lawyer.

9. Buying a property in Spain from a non-resident

If you are willing to buy a property located in Spain from a non-resident property owner, be aware that you should deposit 5 % of the purchase price against any tax due from the seller, previous file of the corresponding form available from Spanish Tax offices (Oficinas de Hacienda)..

Should you fail to do this, your new property will be subject to a lien in order that the Taxman recovers the due amount.

Here we must remind you that if the purchasing price declared is much lower than the approximate market value the Tax inspectors could feel that the purchasing price is too low and you may be applied heavy penalties. Your Spanish Lawyer may inform you about the market value of the property that you are willing to buy.

These are only general guidelines and not definitive statements of the law, all questions about the law's applications to individual cases shall be directed to a Spanish lawyer.

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