Maura Hillen, MBE, Hillen Real Estate.
If you are considering buying a property in Spain you need to bear in mind that the system, steps to follow and remedies in the event of any problems may be very different to those you have experienced in your home country.
As a homeowner and campaigner with over 10 years of experience of what can go wrong when buying a home in Spain, I have prepared a brief guide of practical, though not legal advice, for prospective home buyers written from the perspective of one who has encountered many pitfalls. It is based on property purchases in Andalusia but the general principles remain the same. It gives my personal opinion, based on my experience.
FIRST CHOOSE YOUR LAWYER WITH CARE
I do NOT believe that it is a good idea to engage a lawyer recommended by your estate agent, the seller or anyone else with a vested interest in the transaction. Indeed, if the property is located in a small town or village some people recommend using a lawyer located a reasonable distance away to avoid potential conflicts of interest.
Treat personal recommendations from acquaintances or from social networks with caution. Homebuyers are not experts and one person’s experience could sometimes mean one of two things: they were lucky or they were unlucky but they don´t know it yet.
LOOK CAREFULLY AT THE PAPERWORK AS WELL AS THE SPLENDID VIEW
A decent estate agent should be able to provide you with a pack containing the paperwork for the property that you are interested in. Pass it to your independent legal advisor so that they can assess the property from a legal perspective BEFORE you commit yourself. The pack should contain.
TITLE DEEDS (ESCRITURA). This document should accurately describe what you plan to buy. That is to say a dwelling (not a tool shed, commercial premises etc) of a specified size and description on a plot of land that can be located using the information provided.
NOTA SIMPLE. This document confirms that the deed (escritura) for the property has been registered at the Land Registry, thus legally confirming title. In addition to describing the dimensions of the property and who legally owns it, it also shows if there are any debts such as a mortgage or other financial liens registered against the house. The Escritura and Nota Simple will also reveal rights of others with regard to the property: rights of way, rights of view, hunting rights, gathering rights, water rights or any other right that might interrupt your enjoyment of the property.
PROOF OF THE PROPERTIES PLANNING STATUS: This is the most complicated aspect of buying a property in Andalusia. I would INSIST on one of the following documents:
License of First Occupation (LFO): In general, this document is to confirm that the property was constructed legally in compliance with its planning permission and should be available for any fully legal property constructed after 1975 in Andalusia. This document is a must have if you plan to alter or extend the property. Check that the Licence describes the building in its current form.
· AFO or DAFO: If the property was constructed after 1985 and does not have a licence of occupation it is likely that the property was constructed without planning permission, usually in the countryside where construction is severely restricted but consumer demand is high. There are an estimated 300,00 properties in this category and if you have fallen in love with a fantastic villa with a pool in a tranquil rural setting you are probably about to buy one of them. Insist that the seller provides a document called an AFO, also known as a DAFO, even if the property is registered at the Land Registry. This document confirms that the property is now tolerated by the authorities (that is a polite way of saying that they don’t want to demolish it), is not on protected land, and can be legally connected to services, such as electricity and mains water. Under current legislation, you will not be given planning permission to alter or extend these properties. What you get is what you see. No more.
CATASTRO SEARCH: To ensure that the property is registered in the catastro (a form of graphic registry) and that its description and characteristics concur with those at the Land Registry.
RECENT ELECTRICITY AND WATER BILLS: In the seller’s name showing that the property has a supply and is not in arrears.
PROOF OF PAYMENT OF LOCAL TAXES: The seller should provide recent IBI (Property Tax) and Rubbish collection (Basura) bills proving that these taxes have been paid and are up to date. A buyer can become liable for any arrears for the previous 4 years.
PROOF OF PAYMENT OF COMMUNITY CHARGES: If the property is a flat or on an urbanisation, proof should be provided that the property is up to date with community charges. It is of course necessary to know what those charges are. The buyer becomes liable for any arrears.
ENERGY PERFORMANCE CERTIFICATE: The seller is required to provide the buyer with a Certificado de Eficiencia Energética. The energy performance certificate is a report that describes how efficient a property is in terms of energy consumption. It assigns an energy rating to a property on a scale which ranges from "A" (the most efficient) to "G" (the least efficient).