A quick guide on buying property in Spain for UK solicitors

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Do you have a client looking to buy property in Spain?

How can you help him/her from the UK?

 It is quite likely that you will have one or two clients looking for a property in Spain. The uncertainty of Brexit and the temporary weakness of the Sterling pound has not stop British buyers from their dream of buying a home in Sunny Spain. It is true that they are not buying as much as they did before the recession but they are still buying second homes and looking for a place to retire or a place to spend family holidays.

Very often, clients will contact their trusted advisors to see if they can give them some guidance or recommend a lawyer able to deal with the purchase of the property in Spain. Obviously, you cannot be expected to be versed on Spanish law and the normal thing is to recommend the client to look for a Spanish lawyer or to recommend one, if you have come across a firm in the past and you were happy with the service provided. Having said that, knowledge is never a burden and therefore see below a few tips on what should and what should not be done when buying property in Spain which will prove of help if you are approached by one of your clients asking for advice:

1) Help your client to make an accurate budget.

Apart from the price of the property your client should consider other costs involved in the transaction:

– Taxes, Notary and Land Registry: Approximately 10%-12%.

– Spanish Lawyer fees*

– Surveyor**

* althoughnot mandatory (because the Spanish Notary usually carries out the main checks on the title and charges), we would always recommend instructing a Spanish lawyer who can collaborate with you when your client is buying in Spain. He will carry on a full due diligence on the property and draft the necessary contract. The Notary Public will not do the above.

** we would recommend to have one when your client is buying a resale property in order to be 100% sure about what yourclient is going to buy.

2) Inform your client that he/she should save a 30%-40% deposit plus 10%-12% for the Notary, taxes and Land Registry fees.

Nowadays, most of Spanish banks are not offering mortgages which exceed 70% of the appraised value of the property. Your client will need to ensure that he/she has enough deposit to complete on the purchase, usually around 30%-40%.

3) Your client should have a clear idea of what he is planning to buy before committing to a purchase

Spain has different regions with big differences between them in terms of weather, lifestyle, tourism, etc and most importantly, in terms of price. We would recommend your clients to visit the place in winter so they can get an idea of the way of life outside the tourist season.

Once they decide where they want to buy, the second step is to consider the different types of properties they can buy, i.e. brand new, old property, off-plan property, urban or rustic land, and obtain legal advice to ensure they are fully advised on all aspects of being the ownerof a property in Spain.

4) Encourage your client to check different options of mortgages.

Make sure your client fully understands the conditions of the mortgage offer. We would recommend to have the draft mortgage deed reviewed by a Spanish lawyer in order to ensure that it does not contain abusive clauses. In our recent article about Spanish mortgages we talked about some abusive clauses that some Spanish lenders have been including in their mortgages in recent years and that should be avoided when getting a Spanish mortgage.

Look for the mortgage which is most appropriate for your client´s income and financials. There is a range of mortgages on offer and yourclient should pay special attention to the interest rate, repayment period, fees for setting up the mortgage as well as early repayment and cancellation fees.

 5) Advise your client to reserve the property and sign a purchase agreement or “contrato de arras”.

If yourclient finally finds “the” property, he/she will have to reserve it while you and your Spanish lawyer will be collaborating and dealing with all the checks that the transaction requires to ensure that they are buying safely. Your client will need to pay a reservation fee of around 3000 Euro which will take the property out of the market. Then, once all the checks have been done, and the documentation has been reviewed, he/she will be asked to pay a deposit of around 10% with the signing of the purchase agreement (contrato de arras) and the rest will be due on completion.

Signing an “arras” contract means that both parties have the right to withdraw:

If your client decides not to proceed with the transaction he/she will lose the deposit, but if it is the seller who withdraws, or if the property has been misrepresented, yourclient will be entitled to claim double of the deposit: his 10% plus another 10% compensation.

6) Consider engaging a surveyor.

Your client may consider that the property needs to be surveyed by a professional with appropriate experience and qualifications. That is very sensible thing to do, but your client will find that some Spanish estate agents will discourage this. If that is the case, the client needs to follow his/her own instincts and still instruct his/her own surveyor.

7) Check the annual expenses of owning a property in Spain.

Be certain of the likely annual expenses your client will incur, including service charges, property tax (IBI), non-residents income tax, wealth tax if applicable, electricity, water, gas, etc.

8) Instruct an independent Spanish lawyer to collaborate with you.

All of the above-mentioned advice can became a terrible bureaucratic fight if yourclient does not engage the expertise and help of an independent Spanish lawyer.

A Spanish lawyer will guide you or your client through the entire process, avoiding extra costs and, what is more important, ensuring that the property your client is going to buy has all it needs to be transferred into his/her name: no charges, no development plans affecting it, etc.

You can instruct a Spanish Lawyer based in Spain or in the UK. Please note that there are several UK law firms with an in house Spanish lawyer able to provide legal advice without your client having to go to Spain.

 9) Warn your client not to declare a lower value than the actual purchase price.

In the past it was quite common to declare a low value for the property in order to minimize the transfer tax payable by the buyer and the CGT payable by the seller. Nowadays, the Spanish treasury will prosecute anyone who declares a price lower than the one effectively paid. The wrongdoer will be fined and additional interest will be applied. On the other hand, when your client decides to sell the property, he/she will be liable to pay Spanish capital gains tax on any profit made and he/she will be liable for CGT on a much larger (but not real) profit.

 10) Recommend your client to make a Spanish Will.

We would recommend your clients to sign a Spanish Will when acquiring a property in Spain. This in order to avoid potential problems in the future for their relatives and beneficiaries. It is not compulsory but in our own experience, really advisable.

Claudia Font & Antonio Guillen

Spanish Desk

Gunnercooke LLP

www.gunnercooke.com

 

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