PROPERTY SALE GUIDE

How to buy / sell your house

With guarantees & Without problems

Calle Cortina del Muelle, 21, 3ºB Avda. Pescia, 4, Planta Baja B
29015 – MALAGA 29780 – NERJA
info@perezparras.com info@perezparras.com
Tel. +34 680 34 87 68 Tel. +34 680 34 87 68

MALAGA - ABOGADOS - NERJA

 Francisco Pérez Parras
• Economist
• Lawyer
• MBA (Master in Administration of
Enterprises)
• Master in Tax Advice
• Master in Property Appraisal and
Taxation
• Expert in Banking
Sergio Pérez Parras
• Lawyer
• Telecommunications Engineer
• Expert Engineer in Judicial
Technology in Cybersecurity and
Telecommunications (CNIPJ)

PÉREZ PARRAS Economists & Lawyers

www.perezparras.com
Calle Cortina del Muelle, 21, 3B
29015 - Malaga Town Centre
info@perezparras.com
Tel. +34 680 34 87 68

Expert Lawyers in
Buying & Selling
Properties and in
Money Contract in
Málaga

PÉREZ PARRAS Economists & Lawyers

www.perezparras.com
 Expert Lawyers in
Buying & Selling
Properties and in
Money Contract in
Nerja
Avda. Pescia, 4, Groundfloor B
29780 – Nerja
international@perezparras.com
Tel. (00 34) 644 44 76 15

PÉREZ PARRAS Economists & Lawyers

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FIELDS OF WORK OF PÉREZ PARRAS ECONOMISTS & LAWYERS
ü Conveyancing ü International Taxation

ü Inheritance & Wills ü Management of Tourist

Apartments Málaga Nerja
ü Non Residents
ü Penal Law
ü Accounting for Companies
& Freelancers ü Labour Law

ü Contracts ü Family Law

ü Civil Law ü Transactions

ü Taxation ü Rentals / Leases

PÉREZ PARRAS Economists & Lawyers
www.perezparras.com
 Do I really need a lawyer to buy / sell a property?

Ø A purchase represents a great economic investment

Ø A variety of state laws and regional regulations must be taken into account

Ø Both seller and buyer have legal obligations: Associated taxes, etc…

Ø Guarantees are very important when buying / selling, to avoid surprises / costs
associated with a house: mortgages, leases, divorce of sellers with share of
gains, existence of first occupation licence, etc…

Ø Knowledge of all the accurate data of the property registration

Ø Adequate land and urban plan of the property to be sold / bought

PÉREZ PARRAS Economists & Lawyers

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 ISSUES INVOLVED IN A SALE

Ø Concept of housing sale (compraventa de vivienda): purchase contract

binding the Contracting Party to exchange the property for a certain Price
(Civil code art. 1445)

Ø Price: the true cause for a seller´s contract (TS judgment, June 20th 1994)

Ø Handover of the property within the stipulated period: : guarantee of the

seller´s seriousness and guarantee of the buyer´s security

Ø Legal Regulation:

v Title IV, Book IV Civil Code: legal concept

v Chapter II of the Civil Code: personal elements of the sale

PÉREZ PARRAS Economists & Lawyers

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 CHARACTERISTICS OF THE SALE CONTRACT
Ø The sale contract does not require a specific layout, but it is viewed as
valid and in existence when there is a simple agreement, in any way,
shape or form, between buyer and seller, regarding the property to sell
and its price (article 1450 Civil Code), even if the seller has not handed
over the property or the buyer has not yet paid the price.

Ø The sale contract of a property is considered mercantile, and not civil,

when the house is bought with the intention of reselling it to profit from
it.

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 What is the contract for the transfer of ownership of
subsidised housing (VPO)?
Ø Contract whereby someone agrees to buy a subsidised property a posteriori, so
that:

Ø The buyer agrees to pay the full Price of the VPO housing on agreed
terms, during which time he owns the house, but does not yet fully possess
it.

Ø The seller retains ownership of the property during the agreed terms, as a
guarantee until the full agreed price is obtained, but without being able to
sell it to other buyers.

Ø Once completed the agreed deadline and all the agreed conditions have
been met (Price paid in full by the buyer), the parties sign the public deed
of sale and the buyer can now own the subsidised housing.

Ø It implies a mixed modality of leasing repayments: the buyer rents the

subsidised housing and occupies it, while paying the entire fixed price to
acquire the property of the house, signing the deeds of sale at the
conclusion of the term.

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 Parties of the sales contract (I):
Ø Buyer and seller must have a general capacity to buy and sell, without
impediments of a legal nature.

Ø You can also buy/sell through third parties (legal or voluntary representative)

Ø To sell a real estate property, you must have the effective ownership of the
property. For example: heirs who do not own the inherited property cannot sell
it without the consent of all the heirs of said common property.

Ø Causes of nullity of the purchase agreement:

§ Simulated sale: whoever pays the Price of the property but does not
appear in the deeds of sale. The contract is therefore null and void.
§ When the power of attorney of the buyer´s representative has become
ineffective or invalid, because its validity has expired, or because it conflicts
with the buyer´s interests.

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 Parties of the sales contract (II):

Persons who do not have the competence to buy / sell a property

Non emancipated minors

Legally incapacitated persons (such incapacity must be proven)

Persons NOT legally incapacitated, but who lack “natural reason”

How to prove the inability of a person to buy / sell a

house / a dwelling / a property?
Through medical tests that show altered behaviour and
impairment of cognitive and volitional powers
NOTE: paranoid schizophrenia, except in the terminal phase, is not a
cause of disability of the affected person. The purchase contract is
therefore not null.
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 The sale of a couple’s home:

Ø The sale of houses between spouses is allowed (article 1458 Civil Code)

Ø A property purchased as privative by one of the spouses can be registered as a

joint property

Ø The buyer or seller has no obligation to register their status as legally separated
in the Civil Registry

The sale of the marital home:

Ø Even if the habitual residence of the family is exclusive, both spouses must give
their consent, or have judicial authorisation, to sell / rent / ... the house.
Otherwise, the decisions taken will be voidable.

Ø A person who buys a house in good faith and registers it is not harmed by the
lack of the necessary consent of one of the spouses, even if the spouse who
sells the house does it with error or falsehood. The other spouse maintains
his/her right to claim. This situation DOES NOT APPLY to de facto unions.

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 The sale of real estate matrimonial property:

Ø It is voidable at the request of the spouse who did not grant consent to the sale
of real estate property by the other spouse. It is necessary to exercise nullity as
an action.

Ø The wife´s consent may be expressed or implied, prior or subsequent, and even
deferred to the concurrent circumstances. The passivity or non-opposition of
the wife to the disposal of the property will be taken into account, when she is
aware of the situation.

The purchase of real estate matrimonial property:

Ø The acquisition of assets in partnership must be done in view of the common
wealth, although the acquisition is made for only one of the spouses (article
1347.3 Civil Code)

Ø The property acquired as partly joint or partly separate will belong to the
partnership and to the spouse in proportion to their respective contributions.

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 The purchase of real estate matrimonial property:
Ø Even if one of the spouses proves that the property was acquired exclusively
with their money, it does not imply that it is their exclusive property.

Ø Dividing a property shared by a couple does not take into account the sums of
money contributed by each acquirer. In that sense, the personal contributions of
the couple are assessed.

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 Foreigners:
Ø Foreign documents: they are treated as subject to legality and are valid and
reliable as long as these public documents are in accordance with the
regulations (Convention XII of the Hague Conference of October 5, 1961 - BOE
No. 230, 09/25/78), stamped with the Apostille, and therefore not requiring any
additional legalisation.

Ø The deed of sale formalised before a Spanish Notary is an instrument of contract

and a title to transfer ownership, registrable in the Civil Land Registry. The
foreign notary document does not serve as a title of immediate effective
transfer of ownership, but only as a contract, since it is not a registrable deed.

Ø Registration in the Registry of the Marriage Regime:

SPANIARDS
The Registry must disclose the economic-
matrimonial regime (art. 51.9 RH)
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FOREIGNERS
In the case of foreign spouses, it is not necessary to
disclose the economic-matrimonial regime in the
registration.
The registration must state that the acquired
property is “subject to your matrimonial regime”
In the British legal system, the regime is one of
separation.
 Foreigners:
Ø Whithholdings on the Price for Non Residents:

• IRPF: 3% withholding, for taxpayers without a permanent establishment

forcing the buyer to withhold and pay the seller.

• Exceptions:

The owner of the transferred property is a natural person, and the

property has remained in their patrimony for more than 10 years, without
improvements, as of December 31st 1996.

Real estate contribution

Incorporation or increase of capital of companies that reside in Spanish

territory

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 PROPERTY SALE GUIDFE
How to buy / sell your home
With guarantees and Without problems?

Calle Cortina del Muelle, 21, 3ºB Avda. Pescia, 4, Planta Baja B
29015 – MALAGA 29780 – NERJA
info@perezparras.com info@perezparras.com
Tel. +34 680 34 87 68 Tel. +34 680 34 87 68

MALAGA - ABOGADOS - NERJA