The role of the lawyer in the sale of property

In the glorious years of the housing bubble, when everything was easily bought, lawyers played an essential role in advising buyers to purchase property with all guarantees. Now that everything is being sold, our role is still essential to prevent a sale from being frustrated by legal reasons.

An ordinary person takes only very few times during his life the decision to buy or sell a property. However, there seems to be no awareness in the society that, before making this fundamental decision is wise to consult with an attorney. All the contrary, the general idea is that one should only go to a lawyer to solve legal problems and not, as it should be, to try to avoid them. That is why we lawyers often find customers that come to our office once they have already signed a contract, thinking that with a magic wand we can resolve a problematic situation, which would never have happened if they had consulted us on time.

Among the professionals involved in the decision making of a real estate purchase contract, the lawyer is the only one who can give advice with the warranty that this is only his role and that is why he gets paid, with the absolute independence of the one who knows that is going to collect his fees whether the operation is performed or not. In short, the lawyer is the only professional who can calmly tell his customer: do not sign! That’s why taking advice from a lawyer before signing a contract for purchase and sale of real estate is essential and the sooner you come to him, the better.

In real estate market intermediaries tend to avoid the intervention of lawyers, because they think it increases the costs of the transaction and therefore it reduces their room for maneuver. But the reality is quite the opposite: the costs of our intervention are very profitable. We can actually give many examples of real estate transactions that would have failed if there had not been an immediate intervention of lawyers. The most common problems that we solve are:

• problems with the matrimonial regime applicable
• a necessary formalization of an acceptance of inheritance,
• buildings awaiting a declaration of new construction (even if they have been legal built, but not registered)
• fiscal and money laundering control problems specific to non-resident sellers or non-resident buyers,
• special powers necessary to formalize the operation, when the contract parties cannot be present at the formalization of the purchase contract…

But the range of possibilities is enormous and each of these issues can cripple sales management until making it impossible, especially at the present time, because of the lack of buyers and the oversupply of housing available to the market. Furthermore, experience in international operations with nonresident buyers or nonresident sellers is at the moment crucial, as the housing market mainly offers its stock to potential foreign buyers from countries increasing their capacity and interest in purchasing property in Spain (Russians, Swiss, Indian, Chinese, etc.)…

The failure of a real estate transaction means for the real estate brokers involved an effective cost in time, dedication, displacements and risk analysis, and these costs have no compensation if the operation is not actually performed. The causes of such a failure are often legal issues that only an attorney skilled in the art would have foreseen early enough to provide possible solutions and avoid the loss of the buyer. Or, if not feasible any of the proposed solutions, the lawyer could advise to abandon the operation on time, before incurring further unnecessary costs. Working with real estate agents or other intermediaries in the housing market is an important opportunity for business and the synergies it generates are very helpful both for lawyers and for the agencies involved, providing their common customer the benefit to be able to buy or to sell with guarantees and to mature his decision with all the necessary information.

Carlos Prieto Cid, Lawyer

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Buying property without risk

Before buying a property in Spain or signing a contract agreeing the sale of a property, it is important to be aware that, without the necessary guarantees, this signature can represent a major risk. The cost of consulting a lawyer is very small compared with the substantial costs arising from any possible legal proceedings resulting from a legal dispute. However, legal disputes are very easy to avoid if you receive the correct advice beforehand.

The services of a lawyer during a transfer of ownership can cover the following:

Prior inspection of the property:
– Register details: ownership, description, liabilities and tax liabilities
– Cadastre details: description, cadastral value
– Tax details of the property: outstanding tax
– Urban planning details of the property: valuation, planning, liabilities, legality of new building
– Horizontal ownership details: debts, special taxes and duties
– Condition of the building: implementation and monitoring during the preparation of a survey report
– Property value: implementation and monitoring during the preparation of a valuation report

Regulation of register, cadastre, tax and planning details

Financing and tax analysis of the project

Foundation and registration of a company with the tax office

Registration of natural persons with the tax office

Supervision of mortgage financing

Preparation and legalisation of documents
– Arrangement of power of attorney
– Application for apostilles
– Request for simple and certified translations

Drafting and verification of the private contract of sale, option contract, service contract etc.
– Drafting and negotiation
– Verification
– Guidance when signing the contract or signing in the name of the client by means of the power of attorney

Drafting and verification of certificates (for purchase, mortgage, acceptance of inheritance, building project etc.) together with the notary.
– Preparation and verification of documents necessary for issuing the certificate
– Drafting of the proposal and verification of the certificate text drawn up by the notary, based on the project
– Guidance when signing the contract or signing in the name of the client by means of the power of attorney

Processing of tax declarations and payment of tax

Entry into land register

Contracting party’s change of contracts with energy/water suppliers and phone companies etc.

Guidance in negotiating with the following persons/organisations:
– Seller/buyer
– Estate agent
– Builders
– Chief architect and technical architect
– Notary
– Registry officials
– Valuer
– Surveyor
– Bank
– Insurance company
– Property management
– Tax office
– Local council and other public authorities

Carlos Prieto Cid, Lawyer

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