The Notary In Spain And His/Her Role
Finding a good, efficient and if your Spanish is not fluent, English speaking solicitor is most definitely the first and most important step once you have found a suitable property to purchase in Spain. Think carefully before appointing a lawyer recommended by the agent that is selling the property, it is probably better to source an independent solicitor from an area that is not directly connected with the one in which you are purchasing. Here in Spain it is possible to purchase real estate without a solicitor but would you even consider that if you were buying in the UK, the answer I am sure is “NO” so why should it be different in Spain?? The lawyer is responsible, as in the UK, for doing all the searches relating to your chosen property which includes such issues as confirming that the vendor is the owner of the residence, the property is free of any debts or sitting tenants, there is no plan to build a road through the land etc…..indeed it his/her job to investigate all the legalities and check any potential problems.
The Duty Of The Notary
In the UK there is no such thing as a Notary (Notario) they quite simply do not exist as all the conveyancing is done by the solicitors. In Spain any legal documents have to go through the notario thus making him/her not only an essential part of your purchase but also a very important one. The notario’s fees with regard to the purchase of a property are not negotiable with the rates being set by law and payable by yourself, the charge is on a sliding scale which is based on the declared value of the property. If you are getting a bank mortgage on the residence then you will be required to pay the notario’s fees for the mortgage deeds. His/her official position is not to replace the lawyer but to act as a public servant whose duty is to make sure that the transaction, in this case the purchase, is carried out correctly ensuring that all the taxes that are due relating to the sale of the residence are paid to the Spanish government in full. In addition if the funds for the purchase of your property in the Costa Blanca come from overseas it is the notario’s job is to catalogue the money transfer. In most cases it is likely that you will not set eyes on this official person until the day that you go to the Notary’s office to sign the purchase contract and become the owner of your dream home in Spain. On the day of signing both parties and their relevant solicitors will convene together in a room and the notario will confirm their identities and personal details, once this is done then the purchase contract will be read out in Spanish. These days most notario’s can speak some English however if not your English speaking lawyer will translate the relevant points to you. Once signed the purchase contract is then sent to the Property Registration Department to be recorded. The original contract, which is called the “escritura” remains with the notario and you should be provided with a copy at a later date and additional copies can also be obtained at any time. In the past it was common practice for notarios to register sales contracts which did not reflect the accurate purchase price thus undervaluing the true worth of the property. Things however have now moved on and it is the duty of the notario to inform all the parties involved in both the sale and the purchase of the residence that if it is undervalued by more than twenty percent there is a good possibility that the Spanish Tax Authority, which is called the Hacienda, will impose a hefty fine should they spot a inconsistency. The notario is also compelled to retain five percent of the purchase price after the sale of a property by a non-resident of Spain. The latter is paid directly to the Hacienda and this forms a guarantee in the event that capital gains tax is due.
The notario deals with a wide variety of legal documentation during his/her working day and if you are planning to rent your newly purchased property out then he/she will help you, the landlord. If you wish to terminate the tenancy agreement when the rental lease comes to an end by providing an official letter it will be the notario that provides the official notification as well as any future documents that you feel are necessary to send to your tenant.
It is worth remembering that the notario can draw up a Spanish will for you and your partner, with the laws being different in Spain to those in the UK this is well worth considering and the actual cost of having it legalised is minimal.