Whether you are thinking of buying your dream house, a holiday or retirement home or indeed even if you just want to invest some money in a property, buying property in Spain is ALWAYS something that needs very careful thought and preparation.
Normally the first thing you will consider is where do you wanted to be it located? How much money you are going to spend? Do you want a new property or an existing one? Pretty vital decisions you would think, but these are just three simple things to be considered, they are preliminary to the purchase process but they are not the most important aspects of it.
No, the most important thing is to make sure the legal process of acquisition of your home is done perfectly. If people were buying in Britain they would be careful to make sure they act carefully in conjunction with professionals they trust. Yet put them in sunny Spain with a pool beside them, a glass of Sangria in their hand and a developers agent telling them they should use a local lawyer he just happens to have a card for and hey presto, all common-sense seems to fly out the window!
70% of the British citizens who buy property in Spain buy in new developments, usually because of the facilities and the convenience but if you think seriously and if you analyze the news in the press or the comments of other British people, what actually happens? Normally the developer or his estate agent helps them to get a mortgage, but what about the legal advice? Well surprise, surprise and don’t worry - they can provide that too! You just have to do what they say and everything will go through smoothly! I wonder why they are so interested in helping buyers to proceed without any difficulty? Oh yes, I forgot; they’re selling the property and want your money!
You may have heard about developers taking money from buyers without obtaining permissions or the owners of properties built without the necessary building permissions facing demolition and the loss of all their money – not to mention dreams! Sometimes purchasers buy a property, pay 100% of the money and do not get the deed, the “Escritura” which guarantees their ownership. These are only a few examples of the “nightmarish” experience of many British people buying property in Spain. So how can these difficulties be avoided? Very often I am afraid it is just a question of commonsense.
I have seen so many situations where someone buys a Spanish property, uses a lawyer that either acts for the developer or was recommended by him or his agent and only later they find there was some difficulty; their title was never registered to record their ownership, or the developer has gone bust and they don’t have any Bank Guarantees as protection or better still the developer never actually owner the land the property was built on and so they are left high and dry!
In the UK such conflicts of interest are avoided because the solicitors involved in a property transaction can only act for both parties in very limited circumstances and with the express agreement of both parties. Where people buy in Spain sometimes such considerations seem to be neglected and over-looked, though in my opinion they shouldn’t be. Even if a lawyer recommended to you is independent of the developer very often they receive so many referrals from the developer’s agent that their independence is compromised. After all, if you were a lawyer with an inside track to getting a vast number of clients from a new development on the outskirts of town, would you be the one to cause difficulty and say there was something wrong with the title or the contact knowing that by doing so the stream of referrals to you would dry up?
The danger of using a developer or agent recommended lawyer is that this lawyer may not look closely at the issues that really matter to you during the legal process or seek to properly protect your interests. They may instead take a pragmatic view that you pay them only one fee, but if the developers and their agents refer many clients to them. This is how problems arise.
Of course when problems do arise the estate agent does not want to know! They do not accept any kind of responsibility for whatever has gone wrong simply direct you to the contract. If you as a buyer want to pursue a legal action against the builder then of course you will be forced to spend money and time in the courts of a foreign country to try to recover your investment; not an easy thing to do.
So what do I recommend you do? ALWAYS get independent legal advice, always!! Let me repeat that in case you moved too quickly on to the next sentence. ALWAYS get independent legal advice, ALWAYS!! Before you do anything speak to an independent lawyer, their independent professional advice at the beginning of the process will save you many headaches and potentially a lot of money and sleepless nights later on.
As a Spanish Lawyer, I confirm that “Buying in Spain without the pain” is possible, get independent legal advice from a bi-lingual lawyer – such as me! Make sure that your personal lawyer studies the contract before you sign; that they check that the necessary Bank Guarantees are in place and that they do the necessary searches against the property to make sure that it does not have debts for taxes or public services and will get the necessary permissions. They will also make sure you receive the “Escritura” or deeds of the property after going to “protocolizar” the contract in a Notary.
Do not be afraid; you are the one with the money and there are literally thousands of properties available in Spain. If the estate agent tries to get you to do something without you first speaking to your own independent lawyer, move on to another property, but make sure this process is done properly, then you will see that is very easy to buy in Spain without the pain!!
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