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Purchase a Property in Spain

Purchase a Property in Spain

2. Legal Aspects to Buying a Property in Spain

Although the form is different, the substance of a Spanish contract for the sale and purchase of real property is essentially the same as that of an English contract though normally with the additional guarantees for both parties typical of a Civil Code contract.

There are three main mechanisms by which real property is bought and sold:

  1. Solely by private contract between the parties. Note that this mechanism does not per se permit registration of the purchaser's title in the property registry.
  2. Solely by public deed (escritura pública) before a Notary.
  3. By a combination of private contract between the parties leading to later elevation thereof to public deed with completion upon signature of the escritura. This is the commonest mechanism (and probably the safest for a foreigner to adopt when purchasing).

The normal procedure (i.e. 3 above) is for the parties to agree in private contract that the parties shall buy and sell, and establish the terms thereof, and a completion procedure and date. The actual transaction (which may thought of as "completion") is later effected by way of public deed including payment of consideration and formal handing over ofpossession (normally signified by the handing over of the keys to the property).

It should be noted that the private contract stage is somewhat different from the moment of contract (as opposed to completion) in English law. Whilst the private contract may, and sometimes does, serve as the actual contract of sale and purchase (see 1 above), the said private contract is more often a preliminary agreement which binds the parties to a future deed of contract for sale and purchase (see 3 above). In consequence, the purchaser does not normally need to consider such matters as insurance of the property and against his public liability in respect thereof until the actual conveyance (i.e. formal handover of possession) has taken place, normally upon signature of the public deed.

Once the escritura has been signed, the purchaser may then register his title in the property registry. Inscription in the registry is proof of title against all claims. Unregistered, the escritura (or indeed the private contract in the procedure outlined at 1 above) is prima facie proof only against the vendor. Note that a private contract (if the purchase and conveyance were effected in that way) does not permit registration in the property registry.

Once signed, the escritura is included in the Notary's "protocol" and forms part of his records forever.

Immediately following the signing, the details should be presented to the Property Registry for noting in their daybook. This gives intermediate protection until formal presentation of the escritura (which protection is important, since it prevents, for example, the vendor fraudulently charging the property by way of security for a loan in the interregnum between him having sold and the purchaser registering his title). Notaries will, if requested, formally notify the registry of the transaction for note in the daybook.

 

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