Any legal question on buying property in Spain? Maria answers

For opening the apetite, I am starting with these post below:

You are negotiating the purchase of a property and suddenly, the buyer choses to sell it to someone else. Is there anything I can do?

It depends:

a) If you did not agree on property and price nor set a day for signing the contract. There is not much you can do unless you can proof clear damages arised from the will change of the buyer. In this case, you could claim compensation.

b) If you already agreed on property and price and were just waiting for a moment to sign the contract or even more if you had already set a date for signing the purchase contract, you do have rights to compel the counterparty to sell the property to you at the agreed price. Even fs not deposit has been paid yet. This is what it is called a "Precontract of sale" ( provision 1451 of the Spanish Civil Code)

c) Buying-option is an agreed and signed contract by which the buyer is given a period of time to finally buying a property.Price can be closed or open to be set. It generally is perfomed with a rental contract being vigent during the time before the option date.

d) Sales contract: Object, price and wills of sale and purchase are agreed and signed.

e) Public Deed of Sale: Purchase contract is notarised so it can enter the Land Registry and buyer obtain full ownership safety before third parties. 

While i respect, and would never criticise any of Mariadecastro's work and legal help on here i think some should read the 4...Four...pages about the Spanish Governments idea of house legalities and what seems to be still,  a very much ongoing problem in what should have been sorted out many years ago, and perhaps  even sorted out almost overnight, so as to not lose face about the law in Spain on house's.

Middle pages.

Daily Mail today Wednesday 27 November 2013

Having read the article in the Mail, the scale of the problem is really unbelievable.There are around a million homes that were built, without proper planning permission on protected land. It wasn't just Brits caught up in the scandal; there are possible more than half a million Spanish as well as tens of thousands of Germans and Dutch. They couldn't all have been stupid, naive or lacking in common sense as some seem to believe.

It's difficult to see how the destruction of these homes will make life better for anyone, least of all the reputation of the Spanish government. Do they plan to reinstate the land back to it's former state? Who knows, but one would hardly think so. Perhaps the answer would be for National government to legalise the majority or at least the ones that people have bought and live in and ensure that something like this could never happen again. At least that would be one way of bringing some confidence back into the housing market.

Is there an online version of that new?

Kindest,

Maria
 

Maria, go to Mailonline, then click on the MONEY banner across the top. It's there.

Maria,

this is the link

http://www.dailymail.co.uk/money/mortgageshome/article-2513960/100-000-expats-homes-bulldozed-day.html

As Land Act 2007 expressly says, Rights ot Land buyers was quite deffectuosly regulated in Spain till 2007 when buyers protection was restrengthened through a sucession of reforms of this Act, specially provision 20 where control of Notaries and Registrars are made quite exigent.

I can say, without defaulting truth, that efforts are very reasonable and well done by our government/s since then and that protection of buyers, with the always necessary help of a good independent lawyer, is full in Spain these days.

Maria.

Fully understand what your saying but a better approach and answer to this would be for the Spanish Government to fully read this article and respond very heavy against it, if all what they say is now in force.

If they don't, then why not? after all this is not just a couple of barrels of lost wine, it's one of your biggest tax money earner's. If the Spanish Government wont assure people it has been 100% fully stopped, then you have to asume it's still going on somewhere in some places.

This is one of England's biggest National Daily Newspapers that have reported this, true or not, old news or new news, but even you must admit that the article has done, or can be seen to be doing untold damage to the poor, perhaps even slowly recovering housing market in Spain.

Many readers who perhaps had thought of buying / retiring / moving to Spain for all the better reasons could read this and have second thoughts, as always bad news travels fastest.

This is more then enough for some people to go no further then reading the article and making their mind up that nothing for the better has changed in Spain with the housing market, so why buy in Spain.

Ok.Let´s try...

Will keep  you posted

Maria

Maria, I hope you don’t mind but for the sake of transparency I have several questions that relate to problems of legal certainty of property ownership, which has given rise to mistrust and confusion in Spain.

• Have the deficiencies in the land registry now been resolved? I’m confused why there still appear to be instances where illegal properties are shown as legal in the registry. How can that that happen, but more importantly, can the land registry be currently relied upon?
• Have the battles between local and regional governments been resolved or are purchasers still at risk from retrospective actions? There still appears uncertainty as what may be legal today may not be so tomorrow. What is being done about this?
• Has the corruption and collusion between political authorities and the construction industry been resolved and what deterrents are being used to resolve this?
• You made mention of control of Notaries and Registraars, but what controls are in place for lawyers and Banks? What measures are the Bar Associations currently undertaking to regulate their members? Likewise what measures are being undertaken to better regulate the Banks who are now a significant player in the real estate industry.
• What controls are in place to ensure that Banks cannot, for instance, retrospectively demand monies to cover unpaid developer mortgages from purchasers who have already paid for their homes?
• What controls are in place to deny Banks selling repossessed property from developers, when purchasers’ off-plan deposited monies that were supposed to have been protected according to Ley 57/68 have still not been returned to them?
• Have the Spanish Authorities established a fair financial compensation scheme for all legal property owners whose homes may be subject to demolition/expropriation as a result of the Ley de Costas?
• Are there any accreditation schemes in place to better protect consumers from unscrupulous behaviour by agents and developers?
• What measures are being undertaken to ensure that when required justice in Spain is administered in a fair and timely fashion, and how are instances of inconsistent rulings or compromising delays being effectively monitored?

All of these ongoing issues are of real concern to thousands of consumers who, through no fault of their own are currently struggling to gain justice in Spain, so it’s hardly surprising that protection of buyers is being brought into question at a time when more buyers are entering the market.

Ads, this is Spain,  not Utopia

• Have the Spanish Authorities established a fair financial compensation scheme for all legal property owners whose homes may be subject to demolition/expropriation as a result of the Ley de Costas?

Very good points Ads, though compensation is an issue for purchasers affected by corruption and fraud in many parts of Spain, particularly Andalucia, the effects of the Ley de Costas is only a part of this.  Where developers have gone bust and the Town Halls have no money, there is nothing to compensate people who bought in good faith, by which I mean with the correct paperwork in place, only to find out later that the documents weren't worth the paper they were printed on, or 'papel mojado' - wet paper, as they say in Spain.

The bank which financed our development is now marketing several repossessed properties, despite the fact that there is an ongoing criminal case and the public prosecutor has called for the licences to be anulled, the required services never having been completed.  As you point out anyone who checks the land registry isn't going to be alerted to any problems regarding the legality of the property.

We weren't looking for a property in Utopia but did think buying within the EU would mean something....... though I suppose EU and Utopia do sit together well in the same sentence!

Utopia doesn't exist so has no problems...Spain exist's and has problems.

It's important that we face these questions together and this is not intended to be devisive, nor unrealistic.

Nevertheless it's important that propsective buyers remain aware of the risks and that until such time as better controls and regulation are in place that they too could be at risk.

There are many "out there" who do not know of, or in some cases they do not believe these ongoing realities (some instances are inconceivable in this day and age!), nor do they appreciate the significant risks associated with ongoing retrospective actions etc, and the Spanish Authorities need to recognise how their failure to control these major issues and requirement for effective compensatory systems to be put in place (with adequate monies set aside from the Spanish Government)  is only sadly accentuating mistrust and confusion.

How long can innocent EU consumers be treated as pawns in a conflict that is outside their control?

As for the EU, this is the reality..... Srictly speaking and under the terms of the EU Treaty, the system of property management remains the "competence of the member state" and the Commission appear only able to intervene in circumstances where there has been a breach of EU Law.

I wonder therefore if Spanish legal teams protecting their clients need now to become more fully conversant with EU Law if their clients are not, at present, being protected by their own Spanish Authorities? And from this we can not only gain better protection for consumers but also identify where EU Law fails to protect its citizens, with respected and intellectually competent calls for adequate reform.

At present innocent petitioners to the EU Commission, in their attempts to highlight these significant and numerous property rights issues and lack of protection, are being advised that the Commission have no powers to intervene, so where does that leave innocent petitioners?

This failure to address ongoing Spanish Property Rights issues by both the Spanish Authorities and the EU Parliament / Commission is of major concern, and its sad but necessary to acknowledge that in the interim this needs to be brought to the attention of not only the general public (via media articles such as the Daily Mail) but also to the attention of the European Parliament and Commission ( those concerned should be writing en masse to their local MEP's via www.writetothem.com). Surely this is in everyones’ interest to get this impasse resolved?

With the upcoming European elections in May next year there is never a better time than NOW to do so.

As a great advocate for consumer protection, I look forward to your responses on this Maria.

Anne and all:

Have been in a meeting the whole morning. Back at home now with family.

Promise full article and answers to your questions by Monday.

Enjoy the weekend. Of course we can ( and must) try to improve things.

Take care,

Maria

Thank you, Maria.

Hope you enjoy your weekend with your family, too.

Kindest regards.

I wrote to my MEPs several weeks ago, so far none of them have replied, I had an automated response from one saying they would reply in due course, but nothing since.  I will try again, but meanwhile we are in the hands of the criminal court.

Writing to MEP's is a waste of time.  They have standard replies - 'we cannot intervene in the affairs of another member state',   'we cannot get involved in individual cases'.   'we are really sorry to hear about your situation, unfortunately we are unable to help as it is outside of our remit'.   These comments are followed by suggestions of various bodies they suggest you contact whoi will give similar replies.

2 years ago, 5 of us had a meeting with David Liddington, European Minister, who gave the impression that he was listening to us by taking deep breaths at appropriate intervals.  He then made several promises of action - he would set up a cross party group to tackle the situation, he would raise the issues with his Spanish counterpart at every possible opportunity, he would involve Nick Clegg as his wife is a Spanish Lawyer and would hopefully be disgusted at the way her country behaves etc...we never heard another word from him.  One of our group submitted a huge file to his office including several case studies and extracts from Spanish laws which are constantly broken without consequence - the file was never even acknowledged and is probably holding a door open somewhere in the foreign office.

Our government will not help, the only possibility of any kind of result is through lengthy and expensive court procedures and even then they will waste as much time as possible and throw every possible obstacle in the wayin the hope that you disappear.

I wish you success.

Changing the subject (but still relevant under the thread title): I am increasingly hearing of cases of communities with mounting debts due to non-payers, and the resulting problems. There is one large (450+ properties) local community with enormous debts - I have heard of one individual owner who apparently owes 28,000€; I heard of another yesterday where the fachada is in a terrible state, the ageing lifts need replacing (probably in breach of countless laws) and the swimming pool, it turns out, was never registered with the appropriate authorities, needs all sorts of work to bring it in line with current regualtions, and as a result has been closed - affecting rental values and of course sale values/prospects. I keep hearing of new "fast track" schemes to quickly recover community debts, but the reality doesn't seem to bear this out.

My question to Maria is, do potential buyers have the legal right to ask for recent community accounts and minutes of AGMs, and is this something that you would automatically request when  carrying out conveyancing work for clients?

And my question more generally is, are prospective (especially foreign) buyers these days in Spain aware of the scale of the problem, does it even occur to people to check on this aspect of a purchase, are people aware that many communities are effectively bankrupt, are people aware that bank owned properties are in many cases the worse situations, are they aware that they may end up paying huge fees to cover the fees not being paid by other owners (including the banks) - or are people being blinded by apparent bargains, and just buying themselves a load of debts?

Rob,

as a potential purchasers I'm fully aware of the potential problems and as such prefer to rent on an annual basis. My experience is that on an annual basis I'm able to rent (cash) for far better than I could purchase or would want to purchase in Spain.

With all the current and stored up problems Spain has in her property market am happy to rent at the moment but would purchase (big) if I thought it was a long term good bet.

As a Swiss resident the Spannish tax system scares me (and my Italian wife).

Rosetti