Bank Drafts and selling up

We have finally sold our apartment in Spain.  Our agent insists its a quick sale and wanted us to sign contracts asap. We were given it in English and then sent a Spanish one with "spelling" changes to be sent back asap by DHL.  Alarm bells started to ring so we contacted our Abogado who has our deeds to look over it and help us finalise the deal.  My main concern is ensuring the bank draft is legit before we hand over the deeds.  We asked if we could give over the deeds after the bank draft is cleared but was told its not possible.  How can we be sure for certain the bank draft is genuine?  Why cant the amount due just be electronically transferred from bank to bank instead?  Any input would be appreciated.

 Why cant the amount due just be electronically transferred from bank to bank instead? 

Because the signing and the handing over of the money need to done simultaneously to avoid any risk - If one is done before the other either the buyer or the seller are at risk depending on what is done first.

Assuming you are going to the notary yourself? not using a power of attorney. The notary will check the bank cheque is genuine

 Just in passing.  ‘Handing over the deeds’ does not apply in Spain. Deeds as in the English term do not exist, an owner only ever has a copy (copia simple) and even that need not be produced as a potential buyer would get a nota simple from Property Reg.as that is the only prime record of ownership, debts registered etc.. The original contract of sale, is held within the Notary’s office records  (just like a Will no original copy)  before whom the contract was signed.

For a new sale, the notary by law must, I believe within 24/48 hours, before  the transaction get a nota simple from the property registry office to satisfy him/herself that the sale can take place, i.e. no impediments.  Even if the law permitted, he/she would never reply on a copia simple as so much could have changed since it was signed, maybe years before.

So the signing of the contract before the Notary, and usually, the handing over of the payment is what happens simultaneously, although that is not a requirement.

Some years ago I decided to buy a property.  I did not want the actual sale to take place until later. 

The owner gave me a power of attorney (poder) to sell the property, I gave him the payment for the property and he moved to France.  Some months later I went to a notary,  and acting on behalf of the registered owner, with my POA,  I sold the property to myself.  No money in any form was present in the office, so the notary saw no payment. 

Thank you for your prompt replies

Caroline

Caroline, going back to one of your questions,   “How can we be sure for certain the bank draft is genuine.”  

If  it is drawn on a reputable bank then almost 100% it will be OK.   That said, I did get a Draft drawn by, I think it was Nat West bank UK, if not then one equally reputable.  It bounced.  

I never establish why it bounced, but as it was replaced very quickly  by one that cleared I never pursued it.  I now wish I had!

A bank draft issued by a bank should be legit as it's drawn on the funds availably in said bank account, with the banks name on it, now this account it was drawn on is / should be minus this amount of money.

For it to have bounced perhaps the said account was closed down almost immediately the draft was drawn, and the, if any, remaining funds were withdrawn, so more then likely a bank mistake which as we all know "Don't happen" so they say, so the bank aired on caution. Also possible the account holder mentioned something to the bank about the draft, the sale or purchase, then the bank stopped it until it got sorted out. As a rule they should be 100% safe.

But as I say to people now when they purchase of me with any cheque.."So you want to give me a piece of paper, and I give you a house for it" 

I always thought a building society cheque was a safe method of payment which couldn't be stopped, it's not, the owner of the account just gives a decent enough good reason why the cheque shouldn't be  honoured, and the society will stop payment of the cheque, happened to me, only the once though. 

The Bank Draft I mentioned was drawn on the bank, not on a client’s account.   Such a draft cannot be stopped in any circumstances.

In the past I have on two separate occasions paid Bank Drafts into Abbey National, which was then in Gib.   On both occasions they were 'lost'.  With both I had to wait 6 months until they became invalid before the people who gave them to me could get a replacement issued.

That is why I say now,  I wish I had pursued it to discover the reason.   

Thanks so much for all your advice.  Heading over next Wednesday to sort it all out.

Great to have this forum as I was getting nowhere just googling it.

Caroline

A " Cheque Bancario" is signed by the Bank itself who is risponsable of its payment. Very safe instrument.

Cheers

María

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