THE PRIVATE CONTRACT
Once you have chosen a property and we have negotiated a price acceptable to you, we will prepare a contrato privado which we will submit to your lawyer for approval. This will state:
• the seller's name(s)
• the buyer's name(s)
• details of the property, including both its finca number and its catastral reference
• the agreed price
• the amount of deposit to be paid (usually 10%)
• the way in which the balance of the monies will be paid
• confirmation that the property is sold free of charges, mortgages etc.
• the time period agreed by which time both parties will be available to conclude the sale in front of a Notary. This is typically thirty days but can be any mutually agreed period.
We will also obtain for you a Nota Simple evidencing title to the property and a Catastral Plan which shows the physical boundaries.
Once your lawyer and the seller are happy with the terms of the Private Contract all parties sign the document and you, as the buyer, pay the deposit to the vendor, either directly from your Spanish bank account or via the client account of your lawyer. If both buyer and seller are non-resident and would prefer to pay and receive the funds in a currency other than euros (for example pounds sterling) it is also possible to make the deposit payment by transfer in that currency, provided that the rate of exchange has been specified in the Private Contract.
Speeding Up the Process
If you have the funds ready to purchase, and the vendor’s documentation is in order, it is not necessary to execute a Private Contract.
The sale can be concluded very quickly once both parties (or their lawyers) are happy with the documentation. In this case once the new escritura is prepared by the official at the Notary, you and the seller simply attend and sign. This can literally happen in a few days if the title deeds are in order.
Very often, in the case of cortijos and casas de campo, there is a variance between the escritura (title deed), catastral plan and reality. In fact, it is the norm.
Sometimes this is of little import and no change is necessary. On other occasions the lawyer may note a change that is necessary but accept that it can be done after the sale, making a retention to cover the full cost of doing so.
Once the error is rectified if there is any excess in the retention this is returned by the lawyer to the seller.
If the error is fundamental the lawyer may require the seller to take the necessary steps to make a new, correct, escritura and register this before a sale can proceed. Bureaucracy in Spain moves very slowly and this can take up to six months, or even longer.
Steps Prior To Finalising The Purchase
Before you sign at the Notary you will need to open a Spanish bank account and obtain a (NIE) Numero de Identificación Extrajero. Your lawyer will help you to do this.
The NIE is necessary to enable you to pay the I.T.P. Impuesto Sobre Transmisiones de Patrimonio which is the tax levied on purchases of assets.
If you are a non-resident your lawyer will also obtain from your bank a certificate confirming that the funds with which the property is being purchased have been transferred from outside of Spain.
Once all the documentation is in place and you have transferred the balance of the purchase monies to Spain, your lawyer will undertake the necessary arrangements with a Notary and fix a convenient date when you and the seller can be present to sign.
In the case of a buyer who is not resident in Spain and who is unable (or who doesn't wish) to return for the formalities of signing, a Power of Attorney may be executed in favour of a legal representative. This is common practice and costs little money. This same Power can also be used subsequently for a number of administrative steps that have to be taken care of in order to register the property in your name and to transfer over electricity and water accounts etc.
Sale of the property is formalised when the Notary checks that the balance of the money is being paid (always by bank guaranteed cheque), verifies that all the parties are who they say they are and that the selling party really are the owners of the property, before reading aloud the escritura de compraventa, after which all parties present sign it. The buyer also receives the keys to the property at this point.
If any of the parties do not speak Spanish the Notary will normally insist that they have an interpreter so that each clause is understood before the parties commit themselves. We can undertake this service for you.
Once the signing is completed an unsigned copy of the escritura is provided (a copia simple) to each party and the Notary faxes a copy immediately to the Registro de la Propiedad to prevent the seller fraudulently selling the property a second time before the buyer has had chance to register his purchase.
If the sellers are not fiscally resident in Spain you, as the buyer, are required to retain 3% of the purchase price which you must then pay to Hacienda, on behalf of the sellers, within 30 days. This is, in effect, an advance payment of capital gains tax. Often non-resident sellers would leave the country, cheque in hand, and never make a declaration of the capital gain. This is the Spanish government’s way of ensuring that they get at least a measure of tax. Your lawyer will take care of the retention and will pay it over to Hacienda for you.
Registration of Title
Registration of title should take place as soon as possible but it cannot do so until the Impuesto sobre Transmisiones Patrimoniales has been paid to the regional government. The buyer has thirty days in which to pay this.
Once the tax has been paid the escritura de compraventa, stamped by the regional government, can be submitted to the Registro de la Propiedad in order to reflect the change of ownership in the public records. Once this is confirmed a new Nota Simple can be ordered which will reflect the change in ownership.