House purchase but no escritura!

Hi everybody I am Shirley and new to this site. I wondered if anyone could give me some advice. I bought a holiday home last April and have the copia simple from the notary but as yet have not received my escritura. I hired a Spanish lawyer that spoke English perfectly so no problem there. She sent me another person's escritura in August and so far has failed to send me mine. I arranged to meet up with her when on holiday in Spain in September but it didn't happen as she said she was too busy. Each time I email her asking about my escritura she makes up an excuse the latest one being is that she has sent it back to the notary as there was a page missing. I have emailed the estate agent that I bought the property from and they are not being very helpful. I don't know what to do. Can anyone suggest what I should do next.  

I don't know if this will be reassuring or not. We bought a house knowing that it had no escritura - it was an old, decrepit building and the owner had never bothered to register it. We then got our lawyers to do all that was necessary to get an escritura drawn up - I can't remember the process, apart from the fact that they had to get all the neighbours to agree that the house had been the old guy's to sell and that the border on the catastro were correct. We also had to put up a notice in the Ayuntamiento inviting anyone to dispute our ownership within a two-year period (!) It was slightly disconcerting, but a calcuated risk. I mention this as a worst case scenario - to demonstrate that even if they are avoiding sending it because they haven't got it, there is likely to be a solution.

All the best.

As you DO have the copia simple, this is much less worrying :-)  Did you attend the signing at the notary yourself?  Or if not, do you know at which notary the purchase was registered?  If so, you could pop in there next time you are in Spain, and show them the copia simple, and ask if they have the full escritura on record.  If they do, ask how much it would be for a copy.  Yes of course the lawyer should be providing one, but if it doesn't cost too much to have a copy you might feel happier doing that.  Or, it may be enough simply to know that they have it on file at the notary.  Good luck!

Hi Selva,

The two pieces of advised you've received look good to me.  But I've found that the different culture in Spain can adversely affect these relationships, as many Spanish solicitors do not like being reminded!  For me they're far too casual and not as thorough as you wouyld expect.

If it were me I would put something in writing to them, in friendly terms, briefly summarising the situation and asking for their early confirmation on the action they are taking to resolve the absence of the escritura.  Then leave it for a month and give them time to respond and if you are no further forward gradually escalate the matter, perhaps if necessary with a denouncia or the Spanish Law Society.

I wouldn't bother approaching the estate agent as they are not professionally responsible, just keep up the gradual pressure with the solicitor - it is their job to sort this.  But I believe that a good written record of your requests to them is vital so there are no alleged misunderstandings that can be given as an excuse in a few months time.

Do not cease till having the escritura and full prove of registration at the Land Registry. After one year, if there are lawyers liabilities involved, action will be expired.

You always have 15 years to act the seller to meet with you at the Notary for the signing of this.

A house with no escritura cannot be sold, mortgaged....., even rented--- if the problem is a lack of license.

Serious business

Maria

One only ever has a ‘copia simple’  of the escritura.  For the purposes of making contracts with Utility companies etc. that is sufficient.

The prime record in Spain is in Property Registry. They will  issue a ‘Nota Simple’ which is a copy of what they have registered.  That shows who is the registered owner and any debts which are registered against the property, mortgage etc.

There is in effect no original as there would be in UK with ‘The Deeds’  where one need the original to make a sale.  In Spain there is no such thing as an original escritura.  Before a property transfer/sale can take place,   the Notary will make a search in Property Register, shortly before one signs in from of him/her, to ensure the property is free of encumbrances and ownership can be transferred.  If it is not then he/she will not proceed.

Dear Selva,

The originals of the Escritura de Compraventa are stored at the Notary where the transmission took place. They will have the original signatures of all parties present. What most people refer to as the originals are actually the first authorised copies of the documents held at the Notary. The Copia Simple is normally accepted where required to show it. Probably the Lawyer who handled the purchase for you will have the originals (or the 1st authorised copies) and you should write to them to explain if they can forward to you or if you can collect. As mentioned you can order a 'Nota Simple' which should confirm you as being the righful owner and there are no registered debts associated with the property.Good luck.

Maria,

You identified " After one year, if there are lawyers liabilities involved, action will be expired."

Does this mean that action cannot be taken against a lawyer (lawyer's indemnity) after one year following lawyer's malpractice/lack of due diligence (due to, for instance, not ensuring that LFO licence was made available prior to completion)? Has this time constraint/stipulation come from the Supreme Court?

What about consideration for those who had no knowledge of lawyer's malpractice in this scenario and the implications re inability to gain resales/mortgage/rentals which has only recently come to light for many who have been denied LFO's? Or consideration for those who thought that it was just a matter of time before town halls would issue LFO's, etc, in complete ignorance of the compromising consequences following malpractice/lack of due diligence by conveyancing lawyers?

This would prove to be an extraordinary compromising time constraint on the ability to make the law firm accountable would it not (to the detriment of the innocent party), without full consideration of the facts and major delays/corruption surrounding non issuance of LFO's? And how ironic when innocent  purchasers have been crying out for time constraints on the due process of law, for years (those compromised by major court delays and delays to gain judicial rulings etc, where no time constraints apply). This does not appear equal treatment according to the rule of law does it?

Perhaps I have misunderstood? I would be grateful for your observations regarding this time constraint of one year, and whether this is yet another example of the failure to safeguard the rule of law in Spain (unequal use of time constraints to the detriment of those striving for justice).

A one year dealine for professional negligencies ( tort actions) is by virtue of Civil Code, provision 1089:

Article 1,089. Obligations arise from the law, from contracts and quasi-contracts and from unlawful acts or
omissions or those in which there is any kind of fault or negligence.

Important point to keep the action alive is the " dies a quo" ( day from which the one year is counted) If you have been trying to obtain the refund through other means, dies a quo must start on the day the previous ways are exhausted.

Thank you Maria,