AVOIDING PROBLEMS

Problems associated with purchasing a property abroad have been highlighted many times in the popular press. From a legal viewpoint Spain has not always been the safest place to buy. Most horror stories come at the start of the buying process. It is at the contract and deposit stage that things go wrong, where insufficient checks have been made, or inadequate procedures followed. Among the myriad problems experienced by buyers in Spain the most prominent are:

• Poor agents.
• A badly written contract.
• Properties bought without legal title.
• Issues surrounding developers and builders, lack of planning permission, companies going bankrupt, undischarged loans.
• An undischarged mortgage from the previous owner.
• An escritura which describes a property which has been altered to a degree bearing no resemblance to that described.

Who are the people who give rise to these horror stories? It is the British who trick the British, the Germans who trick the Germans and the Scandinavians who trick the Scandinavians and so on. Why? It is the language issue once again. Someone talking to you in your own language will sound more plausible, particularly someone who has already gained your confidence and understanding. It is unlikely that you would be tricked by someone of another nationality.

It cannot be emphasised too strongly that anyone planning to buy a property in Spain must take independent legal advice, in a language in which they are fluent, from a lawyer experienced in Spanish property law. Always deal with professionals and do not assume that because you may be dealing with a fellow countryman the advice is better, cheaper or even unbiased.

Do not sign anything, or pay a deposit, until you have sought legal advice. Once the advice is given – take it. Do not assume it is someone dotting Is and crossing the Ts. One of the most common phrases heard in Spain is about property buyers ‘leaving their brains behind at the airport’. It is true! The rush to buy a dream home, or a pressurised selling trip, or even the euphoria of the moment often make people do incredibly stupid things, literally handing over cash deposits to agents or owners with little or no security.

While a conveyance procedure in some countries has one solicitor representing the buyer and another solicitor representing the seller, it is not necessary in Spain to have two abogados. It is accepted that only one is necessary, as a contract drawn up by an abogado can be assumed to be correct. After all, the final legal safeguard, a notary, is still to come. But herein lies a contradiction!

An agent selling a property normally appoints the abogado. They know the area, who is available and who they have worked with before. The contract may be perfectly legal but it is possible it will contain clauses more favourable to the seller than the buyer. If an abogado is dealing with hundreds of contracts on behalf of a builder or agent, where will their loyalties lie?

Conversely a person buying a property may be new to the district, probably does not know an abogado and can easily go along with this arrangement. But who pays the bill – the buyer. So it is wise for a buyer to appoint the abogado who draws up the contract, rather than the agent. If that is not practicable then a buyer should take additional independent legal advice from another abogado prior to signing the contract. So we are back to having two lawyers!