[Anonymous]

Mark

As I said “now you have me worried” we are due to complete on Thursday. we took an advance on our UK mortgage to buy the property because there is a paperwork “gap” in it’s history and therefor we can’t get a mortgage straight away. The money is being transferred today to a lawyer , yes you guessed it…. one recommended by the agency. My biggest fear is that we ill pay the money and then find that the property has been sold to 5 other people. How do we tell if it’s really ours?

Best regards

[Anonymous]

Tasmine,

I can’t really explain to you how you check the title of the property without writing a chapter. Suffice it to say that it’s usually in the land registry but that’s not much help because it all depends upon what exactly you are trying to check and at what point in the process.

It’s best not to use a lawyer recommended by your estate agent but as you have had to move fast and had not time to arrange your own lawyer I suppose you will just have to take the risk. However in normal circumstances I never recommend that people use a lawyer sourced by their estate agent as there is great potential for conflict of interest. Having said that I imagine that many agents recommend good lawyers with no hidden agendas so though you are taking a bigger risk it’s far from likely that you will have problems as a consequence.

Make sure that you get a signed document – ideally before transferring any funds – from the lawyer explaining exactly what the money you are transferring is for and how it will be used, followed by acknowledgement of receipt of funds when they reach your lawyer. This is important as if anything were to go wrong you need to be able to prove who has your money and why.

When you say ‘complete’ does that mean sign the deeds of transfer before Notary?

Kind regards

Mark

[Anonymous]

Hi Mark
Thanks for taking this time, I wasn’t in your work schedule for the day
yes, signing the deeds of transfer is exactly what I mean. We have no reason
to doubt this agency they have been very helpful in the short time we have known them
the only thing that throws up a little question is the fact that they are charging us 3%
of the total as a fee when anything we can find on spanish property law says that the
seller pays the agency

[Anonymous]

Tasmine,

First of all please bear in mind that I am not a qualified lawyer and nothing that I say should be taken as a valid substitute for legal advice from a qualified lawyer.

Normally the seller pays the sales agent but it’s entirely up to the parties involved. If you as the buyer agree to pay 3% then, to the best of my knowledge, there is nothing illegal in that. There is in fact an advantage in that it reduces the price in the deeds which also reduces taxes paid by both parties, though it works out better for the vendor than the buyer on this front. It also means that when you come to sell, unless you can get the buyer to agree to pay the estate agents commission like you are doing, you will end up paying more capital gains tax, though I can’t see the numbers being very big in this case so I wouldn’t loose any sleep over that.

To be honest I don’t think the risks really lie in who pays the agents commission. Assuming that the purchase is completely legitimate then it won’t matter who pays the estate agents fee as it always comes out of the money provided by the buyer. Much more important is to ensure that you are buying a property free of unexpected charges, embargoes, liens, affectations, etc – all things that might have a serious impact on your interests; that the property belongs to the vendor(s) in its entirety and that you take full legal title at the time of signing the deeds before Notary; and that taxes are paid, or the necessary provisions to pay taxes made. Only a good lawyer looking after your interests can ensure this.

At this late stage all I can say is this. Make sure your lawyer speaks English, is present when you sign and explains everything that is read out by the Notary and that you sign (don’t sign anything you don’t understand). Confirm that the Notary has received the ‘nota simple’ by fax from the land registry just before signing and that everything is in order (i.e that the vendor is identified as being the owner and having the necessary powers lawfully to sell the property and that there are no charges etc. on the property that you don’t know about). The Notary should make this clear as a matter of course. Make sure that your lawyer registers the transaction with the land registry immediately after signing. And next time find your own lawyer for greater peace of mind.

To be honest I don’t like giving advice at this stage. I certainly don’t want to alarm you if there is no reason for it as that won’t help you at all. The trouble is that I am not really in a position to judge the situation so I almost can’t say anything constructive. Nevertheless I have written the above so that you are better informed of the issues.

Let me know how it goes.

Mark

[Anonymous]

Hi Mark

You are a Prince among men, thank you very much for your time and advice.

I can’t thank you enough for the information you have given, because although we have been
looking for property on the internet for a while now, when we actually found it and arrived in an
area of Spain where there is very little english spoken, we discovered all the dire warnings
that we have read and seen on TV were a bit hard to put into practice. We could very easily
have said to the agent ” get thee behind me satan… and take your lawyer with you, but then
what, we emerge blinking into the sunlight and engage the first lawyer we see, who could of course
turn out to be the biggest bandit in town. So we found ourselves being a bit lead through the process.
Oh on a good note we actually got the property for 39.000 euros which was negotiated by our agency.

I will let you know how the whole process goes on Thursday

Best Regards

[Anonymous]

Mark

Sorry it has taken so long to get back to you.
The deed was done last Thurs, we have the keys to the house
yes the lawyer only spoke spanish, no we haven’t seen a notary yet (next visit 19th Feb).
We are going against everyone’s good advice, but are quite confident it will work out.
Now all we have to do is get the water and electric switched on, a builder in
to build us an internal staircase so both floors of the house are connected.
And most importantly keep reading Spanish Property Insight.

Again thank you for your time and for sharing your knowledge

Very Gratefully

Tasmine

[Anonymous]

It’s not over until you have signed the deeds before Notary and registered your title with the land registry. I’m not sure what you signed but bear in mind that, until you have signed before notary and registered with the land registry, they could sell the same property to someone else. It would be illegal, assuming you have signed a well-written private sales contract, but it happens. However if you are dealing with decent sorts you won’t have any of these problems and it looks like things are going smoothly for you so I’m not too concerned. But as you can imagine there have been many cases of other people doing things the same way as you and getting royally swindled.

Best

Mark

[Anonymous]

I don’t wish to ring alarm bells, just raise awareness. I have recently been given the option of making a final payment and taking possession of my propert, with a view to signing the deeds in front of the notary at a later date.

I’m glad I declined as I have since found out that the building licence for the property has not yet been granted. Without this, the deeds cannot be issued or the property registered in my name.

My lawyer has managed to get my bank guarantee extended until the deeds are ready to sign, which at least gives me some peace of mind.
My Lawyer was recommended by the estate agent and he has been generally good, though I now question whether he should have checked if the building licence was in place before I agreed to buy the propery.
It was an off plan purchase.

[Anonymous]

Sven,

I cannot believe any Lawyer acting in the best interest of his purchasing client would allow your transaction to proceed without the building license? It is also my understanding that without the Building License, earth Moving License etc. It is not possible to get a Bank Guarantee?

I do though think that there could be some confusion here and the License that has not yet been provided is in fact the First Occupancy License. It is true that without that you are unable to attend the Notary office to officially register the property title in your name.

[Author]

Posts