Almost anyone who purchases a property in England or Wales will entrust the legal aspects of the transaction to a solicitor, either a specialist conveyancer, or a general practitioner, but in any event a qualified independent legal adviser protecting the interests of the purchaser. Only people with previous experience of property purchases and considerable knowledge of property law ought to contemplate handling their own transactions and even then it makes little sense to do. That is because by engaging a solicitor not only should you be guaranteed that the purchase will be handled competently, but if a professional adviser makes an error that causes the purchaser damages, there ought to be a professional indemnity insurance policy to cover the loss.
The same principle applies to buying a property in Spain. Before you make any payment either to a seller or to an estate agent you need to engage an independent Spanish lawyer to advise and assist you in respect of the purchase.
Why it’s important to use an independent Spanish lawyer before paying the deposit on a property in Spain
If, when you are buying a property in Spain, you make any payment before you have received advice then you risk losing the money paid if you do not proceed. In England or Wales you would not make any payment to an estate agent to ensure that the property is taken off the market. In fact, you would be extremely surprised if an estate agent asked you for a payment.
Whether in England or in Spain, a deposit is only paid once your independent lawyer has made detailed enquiries and has reported back to you. You decide to proceed, you exchange contracts and you make a deposit payment, while at the same time agreeing the completion date. Your solicitor completes the purchase, pays the completion monies and ensures that the property is registered in your name. This is the process that ought to be followed to ensure that you buy what you expect to buy and avoid the pitfalls experienced by those who rely on the word of a seller or an estate agent, whose only interest is to complete the sale and receive the proceeds and any fee.
This is the advice that we give to all clients who speak with us before they find a Spanish property to purchase. Notwithstanding that, some do go on to make a deposit payment to an estate agent in Spain before receiving independent advice. They are told that they do not need to take advice, that the estate agent and the Notary will look after their interests, that Spanish people do not use lawyers to purchase property, and that if they really do want to use a lawyer then they can use one introduced to them by the estate agent.
Why should I use a lawyer for my property purchase in Spain?
It is true that Spanish people do not use lawyers to buy property, but that is because Spanish lawyers do not do the same job as solicitors. Spanish lawyers are litigators, so it would make no sense for a Spaniard to engage a litigator to deal with a non-contentious property purchase. Of course, it makes no sense to engage a lawyer introduced to you by the estate agent selling the property, as almost certainly the lawyer will be predisposed to ensuring that the sale completes whatever the circumstances, particularly as the lawyer will depend upon the estate agent for a steady stream of clients.
The role of the Notary in your property purchase in Spain
Whatever you are told, Spanish Notaries do not represent the interests of the purchaser. They are non-partisan. Their purpose is to ensure that the completion documentation signed by or on behalf of the purchaser and the vendor is prepared according to law and that the parties have full authority to sign it and have complied with the money laundering rules and other regulations. The Notary’s job is not to advise as to the merits of purchasing the property. While you might feel confident that everything will be done according to law as a Notary will always be involved, if you do not receive independent advice and simply attend at the Notary’s office with the estate agent and the seller, there is a high risk that one or more elements of the transaction will not have been explained to you fully. This is often because it is not in the seller’s interest for you to be made aware.
In Spain no estate agents are regulated. That means that they can say whatever they like to you to interest you in the property, but once you sign documentation at the Notary’s office stating that you know what you are purchasing, all of the terms and conditions of the transaction are contained in that documentation. Claiming afterwards that you were enticed to purchase because of misleading statements made by the estate agent will not be a sure route to rescinding the agreement, as it may be in England or Wales. There is no action for professional misconduct that can be brought against the estate agent because they are not regulated. If independent advice was not sought then no claim can be made against a legal adviser.
The role of the estate agent in your property purchase in Spain
Unfortunately, when Brits visit Spain they are keen to trust those whomever they can understand, amongst a sea of Spanish speaking people. Hence, the English speaking estate agent has a tremendous advantage as he appears to be the “friend” that the British purchaser has been looking for; the answer to their prayers. It is essential not to fall into that trap. While some Spanish estate agents are eminently trustworthy and consummate professionals, that is not a trend that can be relied upon.
Property professionals in Spain will have you believe that “Spain is different”, which is of course true in terms of sun, sea and sangría, but not when it comes to buying property. Try not to leave your brain on the plane and take independent specialist legal advice throughout your Spanish property transaction. It will not be a huge expense and will give you the protection and peace of mind that you need when buying property in a foreign country the language, culture and rules of which you will not be familiar with.
E&G Solicitors specialise in Spanish property purchases and have done so since 2004 all over Spain, including the Balearic Islands and the Canary Islands. You can meet the team here.
If you are considering buying a property in Spain and you have any questions in relation to the matters outlined above please contact us. You can contact us by email at firstname.lastname@example.org, by telephone on 020 3478 1420 or by completing our contact form.