Though the Spanish Immobilenrecht does not differ basically from the German one. However, there is in Spain, e.g., none §313 Civil Code regulation (duty for the notarial registration of real estate bills of sale). Besides, the Spanish notary public does not have so comprehensive examination and tip duties like his German colleague. These and other differences of both legal kinds entail that the buyer has to follow with the real estate acquisition in Spain even more independently, than the buyer of a real estate in Germany.


Spain disposes of an in detail legally regulated and sure Immobilenrecht with whose attention the acquisition risk is not greater than in Germany. However, just on account of the juridical differences to the right of domicile and the fact that all documents are held into Spanish language and contracts basically in Spanish are closed, the buyer should consult before a lawyer with specialisation on the Spanish real estate right. We offer you to these services by the real estate purchase Majorca as well as on the mainland.


I. Before contract end
Before some contracts can be drawn, the shop assistant has to present a row of the documents which need of the closer examination by the lawyer.


a) Original or entire copy of the purchase document registered in the proprietary register (Escritura Pública)


b) Extract from the land register in Spain from what the ownership structures, loads and charges arise (Nota Informativa simpletons). You can order a land register extract from us.


c) Provided that the shop assistant himself is not an owner of the real estate, besides, he has to present the notarial authority document which entitles him to the sales.


d) The contracts with the water, stream enterprise and other care enterprises together with the last payment receipts.


e) Receipts about the payment of the Spanish real estate tax (IBI).


f) By the purchase of a real estate in a communal installation, should be given from the president of the respective owner's community:
- Statute of the owner's community.
- Establishment title / division explanation.
- Extract about the payments of communal costs and reallocations on the part of the present owner.
- Written confirmation of the president of the owner's community that these no debts have towards third and that the real estate to be acquired is with the payment of the communal costs up-to-date.


g) If necessary the presentation of a detailed and by the shop assistant of signed inventory register of the pieces of furniture, devices and facilities.


The following points should be also finished before the drawing of a contract:


a) Application of a tax number in Spain (Never)


b) Check of tax aspects, how in particular of the death tax


c) Preparation of a possible mortgage at a Spanish bank

 

d) The contracts with the water, stream enterprise and other care enterprises together with the last payment receipts.


e) Receipts about the payment of the Spanish real estate tax (IBI).


f) By the purchase of a real estate in a communal installation, should be given from the president of the respective owner's community:
- Statute of the owner's community.
- Establishment title / division explanation.
- Extract about the payments of communal costs and reallocations on the part of the present owner.
- Written confirmation of the president of the owner's community that these no debts have towards third and that the real estate to be acquired is with the payment of the communal costs up-to-date.


g) If necessary the presentation of a detailed and by the shop assistant of signed inventory register of the pieces of furniture, devices and facilities.


The following points should be also finished before the drawing of a contract:


a) Application of a tax number in Spain (Never)


b) Check of tax aspects, how in particular of the death tax


c) Preparation of a possible mortgage at a Spanish bank


II. Private-written contracts / Contratos Privados

 

On top we have already explained that contracts about the disposal of real estates do not need in Spain of the notarial registration to unfold legal results. The property in a real estate can go over even on account of a verbal contract and key handing over to the buyer. The same one is valid for provisional agreements.


Buyers and shop assistants can put through by disregard of the private contracts therefore judicially their fulfilment or assert compensation claims because of non-fulfilment.


Therefore, it is by the realisation of real estate transactions in Spain a general custom to close a private-written contract before the notarial registration first. These contracts should be absolutely contained him all essential contract components, in particular the rights and duties of the parties, as well as the purchase price and be signed, besides, by both parties on every contract side.


In particular the following contract type is current here according to the needs of the parties to a contract:


Contrato de Reserva / Opción – reservation or option contract
Besides, it concerns a private-written provisional agreement by which the shop assistant undertakes not to draw the real estate within an agreed period into three parts to selling and by request of the buyer against payment of the rest surcharge the notarial purchase document. The buyer makes for it a deposit. The height depends on the agreed reservation duration.
By the end of such a contract it can make sense, the reservation price or premium than according to Arras/extra payment. Article. To declare 1454 Código Civil. Since this legal regulation the resignation of called contracts on payment of remorse money by that to which would not like to keep to the contract.

 

If the buyer cannot realise, e.g., the financing and with it the final purchase, he loses his payment made to the shop assistant. Does not keep on the other side of the shop assistants to the closed arrangement, because he has found, e.g., another buyer who is ready to pay a higher purchase price, he must pay back to his contracting partner the double of the received amount as a firm compensation amount. Consequently the arrangement of an Arras gives more security to the buyer that the shop assistant to him holds back the object also really up to the agreed appointment, because in the other case a not unimportant damage threatens the shop assistant.


However, such a contract does not make sense for all situations. Besides, one should consider that the payment of an amount can be connected to the shop assistant with risks. Before the drawing of some provisional agreements a lawyer with the juridical check should be instructed. The broker often spends himself as a specialist in the real estate right. The fact that your broker of unconcerned and impartial third can be, is obvious, because he has own economic interest in the sales. Besides, he gets his not unimportant brokerage fee of the shop assistant.


III. The notarial purchase document - Escritura Pública de Compraventa


The "Escritura" called in the vernacular is a bill of sale closed before the notary public which is not a condition for the proprietary crossing though, however, is necessary for the registration in the Spanish proprietary register.


The Spanish notary public does not have so comprehensive exam duties and instruction duties like in Germany. Rather the Spanish notary public records merely what to Him the parties give and enquires to begin with by fax with the proprietary register whether the shop assistant is put down there. Afterwards he sends by fax the essential data of the Escritura to the proprietary register again by which first a registration barrier is released what means that perhaps other notarial purchase documents carried out about this real estate are not able of registration in the proprietary register.

 

The shop assistant often requires to give a lower purchase price than actual in the document to save taxes "". This so-called "tax saving model" which is undoubtedly a tax offence is for the shop assistant, nevertheless, rather a tax grave. The purchase of land tax which he has to pay by the purchase amounts as a rule to 7%. If the real estate is resold, nevertheless, later, the profit is taxed on 18%. If no buyer can be found then, nevertheless who is ready to do the same what the today's shop assistant has done by the purchase, the today's shop assistant will have to pay tax on a profit which he does not have really at all On which he would have paid 7% by the purchase, he pays by the sales 18%. In this case becomes.


The notary public in Spain has merely recording function. He records what to Him the parties give. Also, therefore, an expert anwaltliche care is to be advised with the real estate acquisition in Spain absolutely.


IV. Proprietary register (Registro de la Propiedad) and the registration of the Escritura de Compraventa


One can acquire in Spain though efficiently real estates without putting down the purchase on the Spanish land register. Nevertheless, a very important job comes up to the proprietary register. It creates the public faith that that which is put down in the register as an owner is also the lawful owner. Therefore the credulous acquisition is protected by the shop assistant registered in the land register. Therefore the notarial bill of sale and the next registration must be also called according to Spanish right for the buyer essential, because a secure proprietary position is given towards third only for that which is also put down really as an owner in the proprietary register.


The purchase document executed by the notary public must be submitted to the proprietary register by the buyer or the lawyer commissioned with it under presentation of the payment receipt of the notary public's fees and that of the tax office about the payment of the value added tax or land transfer tax for the registration. Then the register official will carry out the registration of the proprietary change. The registration can last some weeks, however, the register is closed compared with other orders by third by a reservation.


On account of the specific features of the Spanish real estate right, the necessary authority ways, the fact that all documents are written into Spanish language and also some terms are to be followed can be advised to the buyer, take up skilled anwaltliche help.

Source of information: Volker Borg's lawyer & Abogado Inscrito www.mallorca-pro.com