When we decide to buy a house, there are a series of questions that we must check beforehand, since, before the public deed of sale, we usually sign private documents (deposit, sale and purchase, etc.), which bind us and, as the purchase of a house involves an investment of money, from the first step, we must be properly advised.
When buying or selling a property, we must differentiate between whether the property is new or second-hand.
In general, to avoid surprises, we must know whether we are dealing with the owner, a mediator authorised by the owner or an agency. In any case, we have to verify the seller’s right to the property or whether he has the owner’s authorisation.
In the case of a sale and purchase of a new home, it is necessary to verify whether a building permit has already been granted, whether construction has begun, or whether it is an off-plan housing development for which a permit has yet to be applied for. The usual practice in these cases is to sign a deposit contract or down payment contract, and subsequently a private purchase contract.
From the first document that is signed, we are agreeing on the conditions for the purchase of the property and it is important to confirm that they meet the legal requirements and that the required documents are attached at each stage (plans showing the surface area, specifications, guarantee of the amounts paid on account, etc.).
In the case of a second-hand property, there is usually a real estate agency that is in charge of marketing it; but it can also be the property itself that does it directly.
When a buyer shows interest in acquiring a property, a buying reservation document is usually signed in which the conditions of the operation are stated, so it is necessary to find out if it is free of charges; tenants or occupants; if it is up to date with the expenses of the owners’ community of which it forms part or if there are any outstanding payments; age of the building; state of conservation; etc.
On occasions, a prior document may even be signed, such as a deposit, especially if a real estate agency is involved, so we must confirm whether, in addition to the price, the intermediary’s commission must also be paid.
The document of deposit (contrato de Arras)
There are different types of security deposit documents, the most common being the penitential one (article 1454 of the Spanish Civil Code).
This type of deposit entails the loss of the amount paid on account by the buyer if the buyer defaults; or the return of double the amount paid by the seller if the seller defaults.
Signing the deed
Once at the notary’s office and for the signing of the public deed of sale, it is advisable to obtain the draft of the deed a few days beforehand, so that it can be properly reviewed and everything is correct. In this way, we will go to the signing of the deed with the work done and having only to verify that everything is in accordance with what we have been signing and agreeing throughout the whole process described above.
Appearance of defects
Once we are owners, we have a period of time to be able to claim the possible defects that the property may have.
If it is second hand, they must be serious, and they must be manifested and claimed within 6 months from the time we have possession of the property.
The defects should not have been perceived with the naked eye by the buyer and are detected some time after the purchase.
Due to the short period of time that exists for such defects to be appreciated, it is essential to act quickly for the claim to be successful.
If it is new, we will have to comply with the deadlines established by the Building Law to be calculated from the delivery of the property: one year (finishing defects); three years for faults or defects that affect the habitability; and ten years for defects that affect the structural safety of the building.
For an adequate claim for the repair of the aforementioned defects, it is advisable to communicate them as soon as possible and in a way that is on record, and if they are not attended to and repaired, to proceed with a legal claim within the legally required period.
Please note: The content of this article is purely informative. Each case must be examined individually, taking into account the regulations in effect at the time.
Do not take any risks, always consult a lawyer. All practising lawyers in Spain must be registered with a Bar Association. For your security, you can check this at: https://www.abogacia.es/servicios-abogacia/censo-de-letrados/
Nathalie Zanolie Lawyer -Attorney (Inscrita en Ilustre Colegio de Abogados de Tenerife con nº de colegiada 3.033)