The sale contract

The date for signing the escritura, completing the process, has been set by the agents and lawyers when signing the arras. It is signed in front of the notary. [see box, below] it could have been done by Power of Attorney, but Frank and Diane would rather be there for the process. The payment process has been agreed (a bank guaranteed cheque from their Spanish bank) and Frank has drawnup a list of nal arrangements.

The lawyer accompanies Frank and Diane to the notary. As buyers they have the right to choose the notary and have left it to their lawyer to choose one.

The Notary

What is a notary? Are they like a solicitor?

The Spanish notary (notario) is a publicly appointed official and very different from a British solicitor. Their job is to take a private contract and, by witnessing it, turn it into a public deed, a document proving to everyone that you are the owner. That makes it quite a prestigious job in the local community.

Their job is to prepare and write the deed, ensure its provisions are legal, ensure that the parties understand the contract and inform them of their tax liabilities arising from the signing of the deed. All this is from an impartial and professional viewpoint: the Spanish notary is not an advisor and will not tell you what is better for you to do, but ensure that the law is enforced. The notary will keep the original of the deed, issuing you with as many licensed copies as you may ask for, each with the same validity.

Are they absolutely necessary?

You could keep the change of ownership as a private contract, which should be enforceable in court. However, for overseas buyers it is the only safe way of establishing title, providing the highest standard of legal security. It is also essential if you are nancing through a mortgage.

Who pays the notary, and how much?

The purchaser pays most of the fees and also gets to choose the notary. Fees are usually from 0.1% of the value on the deeds for expensive property and up to 0.4% for cheaper property. Each copy of the deeds (copia simple) costs a few euros too.

What is the process?

On the appointed day all the parties attend the notary’s of ce, which can get quite crowded. The notary checks the identity of those present and reads out the deeds.

If you don’t speak Spanish you should take a translator along to read the deed in English and ask questions on your behalf if necessary. Many notaries in the main British-buying areas will speak English anyway, or may insist that you have a translator present. If requested, the deed will come already translated with the text in two columns, one for each language. Each party will then be given the deed to sign. The notary will confirm that payment has been made and the keys will be handed over. The buyer will be given a copy of the deeds and their lawyer will fax noti cation to the Land Registry. Later the lawyer will collect the original deeds.

Can we use a British notary?

Britons buying from other Britons could consider using a British notary (who is also not a solicitor). Using the CROBECO system created by European Land Registry Association (ELRA), a British notary may electronically connect with a Spanish administrative manager (gestor), who will provide the necessary information and the documentation required by Spanish law to achieve registration.

For off-plan sales, people usually go through a private contract to formalise the delivery of stage payments and the obligation to build and deliver the housing. Importantly, even if they sign a private contract, either party may request the other to proceed to convert the private contract into a public deed, and if the other party refuses, may seek judicial intervention. To register the purchase at the Land Registry it will always be necessary to grant the public deed.

The public deed is a document authorised by the notary, reflecting the will of the parties, listing their identities and responsibilities and including these on the document as they intended, but also in accordance with legal requirements. It warns the parties about the obligations and duties arising from the agreed contract for each of them.

The notary witnesses the authenticity of the document, so that, whatever the buyer, the seller, or where appropriate, the mortgage lender, declares before the notary is included in the deed. This serves as proof for everyone and neither party can deny the statements contained within it. Notarised records are the highest legal standard of evidence among parties.

The execution of the deed is effectively the delivery of the property, and the balance of the purchase price will normally be delivered to the seller in the presence of the notary. The notary must identify in the deed the price, stating if it is received before or at the time of execution of the deed, the amount and payment methods – i.e. bank cheque made out to the seller or payable to the bearer, bank transfer, direct debit. If the price has been paid prior to the time of execution of the deed, the notary shall state the date or dates on which it was made and the payment method used in each.

Before authorising the deed the notary will ask the Land Registry for a simple note stating the ownership and charges of the estate. Immediately after it has been signed, if the parties request it, the notary will let the Registry know that the deed has been authorised. This prevents the buyer from being affected by any lien or charge that the seller may agree once the contract is concluded, but which are presented to the Registry before the purchase deed is granted. Home sweet home!

The house now belongs to Frank and Diane. They are given the keys at the notary’s office and drive to their new villa, pausing only at a supermarket to buy a bottle or two of something cold and sparkling with which to raise a toast.

There are still things to do and to check – ensuring that electricity and water are connected, for example, and that every aspect of the property is as they expected. But now, within six weeks of first setting eyes on the property, Frank and Diane are able to sit on the veranda of their new Spanish villa, look out over their Costa Blanca view, wave a friendly “hola” to the neighbours and look forward to a wonderful new stage in their life.

Source; AIPP / RICS / RDE