When you finally decide to buy a property in Spain, it is absolutely vital that you retain the services of an independent Spanish lawyer experienced in Spanish property law who is retained by you and you alone. The amount of money you may commit to a property purchase is considerable and it is vital that absolutely nothing is left to chance. Never sign any document or pay any money without first consulting your lawyer. Many British purchasers do not obtain independent legal advice and many have lived to regret it. Some only consult a lawyer when problems arise, but this might be too late. There is no excuse for not retaining the services of an independent lawyer since legal costs in Spain are much lower than the equivalent costs in the UK.

Without the services of a good Spanish lawyer when we first started the process of buying an apartment off-plan we would have had far more difficulty getting out of the contract and having our deposit returned.

Despite the fact that both the UK and Spain are in the European Union there are major legal differences between EU countries and you must be aware of this. Although this book deals primarily with our experiences, I think it worthwhile to describe the various legal pitfalls in which you could be ensnared.

SHOULD YOU HAVE THE PROPERTY SURVEYED?

Starting from the point at which you find your dream property, the first thing to do is to decide whether or not you want to have it subjected to a full structural survey.

For relatively new properties this may not be necessary so long as the property has been built by a reputable builder. Any properties over 10 years old will no longer be covered by a builder’s warranty and should be examined carefully. There are many examples of sub-standard buildings constructed in the 1960s and 1970s when the boom period for building first arrived in the Costa del Sol.

New property?

I have to say that many new ‘luxury’ properties (some close to where we live now) have also been built in a similar sub-standard fashion. We have seen the concrete foundations for the ground floor laid directly onto the surface of the land without any form of damp-proof membrane being laid. We have seen the plastic sewer pipes being laid in a trench with no hardcore or concrete surrounding them. Does this sound like a good foundation for a future free of problems?

Is the property legal?

If your dream property is a villa or a finca (farmhouse) standing on its own land you need to check whether all the land you have been told belongs to the house actually does. Is the land on the escritura (title deeds). You also need to check that the house actually exists in law. Is the house on the escritura? There have been many examples of escrituras which list the land but have no listing of the house which is built on that land. If the property is on the edge of a hillside you need your surveyor to check that the land is stable. The last thing you want to see is your dream falling down the side of a hill. Remember our experience with the little villa with the views!

Rural property?

If the property is rural, do all the services work well? We saw one house which had electricity generated locally but two of the three generators needed to be replaced. What is the condition of the septic tank if the house depends on this for waste disposal? If the property depends on well water, what is the condition of the well? We know many people here who depend on a natural (and I have to say free!) water supply for their daily needs and they have no problems whatsoever, but the well needs to be deep enough to reach the richest supply of fresh water and the pump which brings that water to the surface needs to be powerful enough to do the job properly. All these things can only be checked by a properly qualified surveyor.

If the house is in a rural area and you are viewing in the hotter months of the year, what will it be like when it rains? When it rains on the Costa del Sol, it rains heavily. Flash floods are not uncommon in rural areas and you should check that the property is nowhere near a dried-up river bed. Continuing on the subject of the problems of moisture, many older properties in Spain do not have adequate damp-courses. This may not be apparent in the height of the Andalucian summer when everything is tinder dry, but what is the property like after a particularly heavy fall of rain? If the house of your dreams is at the end of a dirt track, is this dirt track accessible after very heavy rain? The estate agent may have taken you there on a perfectly dry summer day when the only problem is dust. What happens when there is mud?

Should you decide to buy an old village house as a restoration project you should have a proper survey carried out to check the real condition of the building. If you fall in love with an old house which has already been restored you should ask to see the invoices for the restoration work so that you can check exactly what has been done.

Once more the important thing to remember is not to let your heart rule your head. The most idyllic property could turn into a nightmare if you experience problems in the future.

This subject is dealt with in far more detail in Buying a Home in Spain by David Hampshire (Survival Books). I recommend that anyone buying a home in Spain should read this book thoroughly from cover to cover. It was our bible during our moving period.

THE CONVEYANCE

This is the legal term for processing all the necessary paperwork involved in buying and selling a property and transferring the title deeds from one owner to another.

Unlike in the UK, in Spain some aspects of the conveyance can only be done by a representative of the Spanish government, the notary (notario) whose job it is

to ensure that all the state taxes due are paid on completion of the sale and that all outstanding bills have been paid to their satisfaction. You will still need to employ your own independent lawyer. A good, bilingual lawyer is important since they will need to take you through the escritura, which will be written in Spanish.

Many developers will claim to carry out all these checks for you, but you should still employ an independent lawyer to act for you. The developer simply wants to sell. He is looking after his interests. Only you can look after your own interests.

THE PURCHASE CONTRACT

Whenever anyone buys a property in Spain the first step is usually the signing of a private contract of sale. At this stage it is common to pay a 10 per cent deposit and agree a time span for the completion of the sale or the timetable for the payment of staged payments if you are buying off-plan. You need to remember that this deposit is officially non-returnable should you decide not to proceed but also that should the vendor decide not to proceed they will have to return to you 20 per cent of the agreed price.

Buying furnished

There is one further feature of buying property in Spain which must be mentioned. It is very common for villas, townhouses and apartments to be sold fully furnished. Owners moving to a new home leave everything in the property they are selling – and I mean everything. The second property we bought even included the food in the kitchen cupboards and the contents of the drinks cabinet. When a property is being sold in this way it is important that an inventory is drawn up listing all the items which are to be left. It could be very tempting to buy a property which is being sold fully furnished if you like the furnishings. Think how unhappy you would be if you finally took possession and found that the beautiful furniture you thought you were buying with the property had been replaced by tacky furniture which you just have to throw out.

COMPLETION

This is the special day when you actually take possession of your new property in Spain. It will usually be two to three months after you signed the original contract of sale but it could be earlier if you want a quick purchase. Completion must be carried out in the presence of the notary public, although you can appoint someone with the power of attorney to represent you. It is at this stage that the money changes hands and the title deed, the escritura, is transferred. If you are buying a furnished property you should visit it just before the visit to the notary to ensure that all the fixtures and fittings listed on the inventory are still there. Have the kitchen fittings been replaced by second-hand items which do not match the quality of what you agreed to purchase? If this is the case the completion can be delayed until everything is agreed to your satisfaction, but if you sign, the deed is done and you have no way of turning back the clock.

After the sale has been completed you need to ensure that the property is registered in your name at the property registry office. This is one further reason for employing a Spanish lawyer to act for you. If the property is not registered in your name any outstanding charges can still be registered against the property without you being contacted.