The luxury real estate sector has been for the past years in Spain an emerging sector. Sotogrande is a world-wide renowned enclave that has always been a leading example of the Spanish luxury real estate sector which offers discretion, great golf courses, beaches and a lot of sport activities for all ages.
During the past years, at Babiano Abogados we have been providing legal advice to a large number of foreign clients that have purchased properties in Sotogrande, most of all of them luxury villas developed by La Reserva Club. The vast majority of said clients have decided to invest in Sotogrande´s luxury real estate sector to create here, in this area, a second residence. Most of these clients are high profile individuals with very busy schedules that have felt that Sotogrande is a piece of heaven on earth, a quiet place where they can relax and gather with all their family members a couple of times a year. Sotogrande offers them the discretion and peace that financial hubs lack off and grand luxury villas that can accommodate all of their family members.
Despite the fact that legal assistance is not compulsory by law when purchasing a property in Spain, it is always highly advisable that potential investors engage with lawyers from early stages of the negotiations so that they can take care of all preliminary issues. However, and for clarity purposes, the milestones of the purchase of a Spanish property are as follows:
- Legal due diligence: is it vital to obtain beforehand information from the Land Register Office regarding the property. The Land Register Office issues a “nota simple” that provides information of the property (i.e. actual owner, existence of any encumbrances…etc.) that is key before engaging further with the vendor.
- Request of information to the vendor: once the due diligence is carried out, we would need to ask the vendor for the following documents:
- Copy of the IBI (“impuestos de bienes inmuebles”) in order to confirm that the vendor has paid the applicable taxes on the property;
- If applicable, certificate from the residency community confirming that the vendor has paid, up to the date the purchase, the community fees;
- The property´s energy performance certificate;
- Utility bills; and
- The “licencia de primera ocupación” which a license issued by the Town Hall.
It is also necessary to confirm with the vendor how the payment is going to be made – he or she might also request from the purchaser the necessary information to confirm proceeds of funds.
- Signing of the public deed: there is no need under Spanish Law to sign a private agreement between parties before appearing before the Notary but signing a public deed before a Spanish Public Notary is a legal requirement. As an example, some people might sign a deposit agreement that includes a clause by which the public deeds needs to be signed in certain days (normally between 30-60 days) but some individuals sign, directly the purchase agreement before a Public Notary in the form of a public deed; in any case, this decision has to be done in a case by case basis.
All the documents that the vendor has provided the purchaser with have to be also provided to the chosen Notary. The Notary then drafts the public deed which is reviewed by the lawyers. Due to Anti Money Laundering Regulations, it is compulsory that the purchaser provides the Notary with information regarding proceed of funds. Once the deed is reviewed and the Notary is satisfied that it has all the necessary information regarding the transaction, the deed can be signed directly by the purchaser or the purchase might grant a power of attorney to the lawyer so that the deed can be signed by the lawyer on behalf of the client.
Note that all parties (both purchaser and vendor) must have, if there are not Spanish, a “número de identificación de extranjeros” or NIE which can be obtained directly at any Spanish Police Station.
- Register of the public deed and payment of applicable taxes: once the deed is signed, the purchaser has 30 days to pay a transfer tax (which is called in Spain the “impuesto sobre transmisiones patrimoniales” or ITO). Once taxes are paid, the deed needs to be register before the Land Register Office.
- Updating the cadaster & changing utility contracts: the purchaser has 2 months to inform the Cadastral office that he or she is the new owner of the property. It is also necessary to contact the utility companies to confirm: (i) that the utility contracts need to be transferred to the new owner; or (ii) that the utility contracts are to be terminated (provided that the new owner wishes to engage with other utility providers).
Kindly note that if the client provides a lawyer with a Power of Attorney all of the milestones described above can be done directly by a lawyer. At Babiano Abogados we have been offering for the past 30 years a full range of services that provide assistance with all the issues relating to the purchase of properties in Spain and have also been providing with tax advice and accounting services. As an example, we can handle the process of hiring the staff that our clients might need for their properties, we can take care of all their accounting in Spain (i.e. pay invoices, utility bills, deal with the Town Hall in any matter…etc). Our proposals are always tailor made and specific for each client and its need. Babiano Abogados´ purpose is to allow any client that wants to to delegate on us the management of the property once it has been purchased to minimise any inconvenient.
If there you have any queries relating to the above information or would like additional information relating to the purchase of properties in Spain please feel free to email me at martababiano@babianoabogados.com.
