private contracts

[Anonymous]

Hello, please help!

We are trying to buy a property in our village. The vendor is apparently in a hurry to sell but we have been waiting for a long time for her to produce the excritura and other documents necessary for the bank to agree to our mortgage.

There are a number of problems with the house, including a large discrepancy between the superficie listed in the registro and that listed ont he escritura and the fact the the name of the owner on the registro is different to that on the escritura.

Assuming that these problems will eventually be sorted out, we are considering a private contract whereby we pay half of the asking price in cash now and move into the house and pay the rest (with our mortgage) when all of the paperwork is sorted out.

What are the risks of this kind of contract? Is it legally enforcible if either party pulls out? Does anyone have any experience of this kind of arrangement? Are there particular conditions that we should/can include in the contract?

We would be grateful of any advice on this subject. We appreciate that it is NOT the ideal way to do things, but we have been in negotiations with the owner for six months now and we do not want to lose the house.

Thank you,

Sue

[Anonymous]

Hi Sue,

It all sounds a bit fishy to me I would do 2 things firstly ask myself why she is in a hurry to sell and why she cannot produce the documentation you require. Secondly make sure you use the services of a good independent lawyer.

Even if the contract was enforceable do you really need the hassle of dragging the whole thing through the Spanish courts!!

In my opinion it will only end up costing you money if it all goes wrong.

Good luck

Ronnie

[Anonymous]

Dear Sue,

The problem with the measure of the house is quite common in the spanish villages and countryside, I wouldn’t worry especially if the difference is not big, but you don’t say whether is bigger in the Land Registry or in the Title Deeds. Can you be more precise on those points so we can help ?. For your information, there are specific procedures to update the measure of a property ( land or building ) in the land Registry.

Regarding the different name of owner in the Registry I would ask the “owners” for the reason of that difference, it could just be that they are inheriting from the person who appears in the Registry , it could be that they have bought recently and they have not registered their title yet, basicly the “owners” should show you the legal documents proving their title to the property. I would not sign a contract without knowing exactly the reason why they are not in the Registry.

Yes, a private contract can be enforcible, there should be a clause
( resolutoria or suspensiva, your lawyer will decide which is better for this case) giving you the option to get your money back plus a penalty or enforce owner to sell you.

But, as Ronnie says, don’t do anything without your own lawyer checking documents, and don’t accept lawyers recommended by the owners or an agency.

I hope this helps, regards,

José María Sánchez Alfonso
Abogado / Lawyer
Málaga, Costa del Sol
jmsalfonso@inicia.es

[Anonymous]

Thank you both for your advice.

Jose Maria, you wanted a few more details about the difference in superficie between nota simple and escritura:

There is a BIG difference between the escritura and the actual superficie, as recently measured by the tasador (around 70 m in the escritura – and on the nota simple – but real measurements are more than 300 m). The house, according to people in the village, was always more than 300 metres squared…so the difference is not due to a recent extension. There is a two storey building to the side of the house that has been incorporated into the main house (garage and extended bedroom). I suspect that this part of the house was originally a separate dwelling and I am concerned that the nota simple and escritura actually refer to this section of the house (it’s probably around 70 metres squared). There is no question (according to the whole village) that this woman bought the entire house around eight years ago but the paperwork tells a different story (and of course “the village said” will not stand up in a court of law).

The nota simple AND the escritura are wrong. There is also some doubt, as I mentioned, about the names on the escritura/registro. This has still not been explained to me. I am uncertain as to whether the current owner actually registered the transfer of the property in the registro when she bought it (around eight years ago I believe). The name on the nota simple is not hers. Unfortunately, it is very difficult to get any sensible answers from the owner. I cannot be certain of her understanding of the whole process.

My main concern is whether such a large difference in superficie can be sorted out (and how quickly).

Hope you can shed some light on this.

Thanks,

Sue

[Anonymous]

The difference of measure between Deeds and the actual one is very important in this case, obviously the extension of the house has not been notarised ( Escritura de Obra Nueva) and registered, and probably the reason is that the works were done without the proper license, if it is old enough it could be legalised without big problems. I wouldn’t buy without agreeing that the vendor will pay for all the costs and taxes involved in the Obra Nueva.

Regarding the different names in the Deeds and the Land Registry, sometimes that difference is not difficult to solve ( for example when the person selling or named in the deeds is inheriting but the inheritance deeds has not been registered ) , but obviously other cases are more difficult to solve. I insist that the seller clarifies completely why he/she does not appear in the Land Registry.

Anyway, I am afraid that if you want to buy that property without legal problems you must contact as soon as possile a local lawyer ( not recommened by the seller or the agency of course).

Kind regards,

José María Sánchez Alfonso
Lawyer / Abogado
Málaga, Costa del Sol
jmsalfonso@inicia.es

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