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How to buy / sell your house with guarantees in Andalucia - Pérez Parras Economistas & Lawyers Málaga / Nerja

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Sergio Perez Parras
Sergio Perez Parras

This document provides information about buying and selling property through the law firm Perez Parras Economists & Lawyers. It outlines key issues in property sales like ensuring the buyer and seller have the legal capacity to transact. It also discusses topics like selling a marital home, sales involving foreigners, and tax withholdings for non-residents. The document is intended to help clients of Perez Parras understand the legal issues and guarantees involved in the property sale process.

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PROPERTY SALE GUIDE How to buy / sell your house With guarantees & Without problems Avda. Pescia, 4, Planta Baja B 29780 – NERJA info@perezparras.com Tel. +34 680 34 87 68 Calle Cortina del Muelle, 21, 3ºB 29015 – MALAGA info@perezparras.com Tel. +34 680 34 87 68 MALAGA - ABOGADOS - NERJA
PÉREZ PARRAS Economists & Lawyers www.perezparras.com Sergio Pérez Parras • Lawyer • Telecommunications Engineer • Expert Engineer in Judicial Technology in Cybersecurity and Telecommunications (CNIPJ) Francisco Pérez Parras • Economist • Lawyer • MBA (Master in Administration of Enterprises) • Master in Tax Advice • Master in Property Appraisal and Taxation • Expert in Banking
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 Avda. Pescia, 4, Groundfloor B 29780 – Nerja international@perezparras.com Tel. (00 34) 644 44 76 15 Expert Lawyers in Buying & Selling Properties and in Money Contract in Nerja
PÉREZ PARRAS Economists & Lawyers www.perezparras.com FIELDS OF WORK OF PÉREZ PARRAS ECONOMISTS & LAWYERS ü Conveyancing ü Inheritance & Wills ü Non Residents ü Accounting for Companies & Freelancers ü Contracts ü Civil Law ü Taxation ü International Taxation ü Management of Tourist Apartments Málaga Nerja ü Penal Law ü Labour Law ü Family Law ü Transactions 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 www.perezparras.com 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 www.perezparras.com 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. CHARACTERISTICS OF THE SALE CONTRACT
PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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. What is the contract for the transfer of ownership of subsidised housing (VPO)?
PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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.
PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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.
PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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.
PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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.
PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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. The purchase of real estate matrimonial property:
PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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 FOREIGNERS The Registry must disclose the economic- matrimonial regime (art. 51.9 RH) 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.
PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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: Foreigners: 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
PROPERTY SALE GUIDFE How to buy / sell your home With guarantees and Without problems? Avda. Pescia, 4, Planta Baja B 29780 – NERJA info@perezparras.com Tel. +34 680 34 87 68 Calle Cortina del Muelle, 21, 3ºB 29015 – MALAGA info@perezparras.com Tel. +34 680 34 87 68 MALAGA - ABOGADOS - NERJA

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How to buy / sell your house with guarantees in Andalucia - Pérez Parras Economistas & Lawyers Málaga / Nerja

  • 1. PROPERTY SALE GUIDE How to buy / sell your house With guarantees & Without problems Avda. Pescia, 4, Planta Baja B 29780 – NERJA info@perezparras.com Tel. +34 680 34 87 68 Calle Cortina del Muelle, 21, 3ºB 29015 – MALAGA info@perezparras.com Tel. +34 680 34 87 68 MALAGA - ABOGADOS - NERJA
  • 2. PÉREZ PARRAS Economists & Lawyers www.perezparras.com Sergio Pérez Parras • Lawyer • Telecommunications Engineer • Expert Engineer in Judicial Technology in Cybersecurity and Telecommunications (CNIPJ) Francisco Pérez Parras • Economist • Lawyer • MBA (Master in Administration of Enterprises) • Master in Tax Advice • Master in Property Appraisal and Taxation • Expert in Banking
  • 3. 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
  • 4. PÉREZ PARRAS Economists & Lawyers www.perezparras.com Avda. Pescia, 4, Groundfloor B 29780 – Nerja international@perezparras.com Tel. (00 34) 644 44 76 15 Expert Lawyers in Buying & Selling Properties and in Money Contract in Nerja
  • 5. PÉREZ PARRAS Economists & Lawyers www.perezparras.com FIELDS OF WORK OF PÉREZ PARRAS ECONOMISTS & LAWYERS ü Conveyancing ü Inheritance & Wills ü Non Residents ü Accounting for Companies & Freelancers ü Contracts ü Civil Law ü Taxation ü International Taxation ü Management of Tourist Apartments Málaga Nerja ü Penal Law ü Labour Law ü Family Law ü Transactions ü Rentals / Leases
  • 6. 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
  • 7. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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
  • 8. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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. CHARACTERISTICS OF THE SALE CONTRACT
  • 9. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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. What is the contract for the transfer of ownership of subsidised housing (VPO)?
  • 10. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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.
  • 11. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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.
  • 12. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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.
  • 13. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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.
  • 14. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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. The purchase of real estate matrimonial property:
  • 15. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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 FOREIGNERS The Registry must disclose the economic- matrimonial regime (art. 51.9 RH) 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.
  • 16. PÉREZ PARRAS Economists & Lawyers www.perezparras.com 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: Foreigners: 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
  • 17. PROPERTY SALE GUIDFE How to buy / sell your home With guarantees and Without problems? Avda. Pescia, 4, Planta Baja B 29780 – NERJA info@perezparras.com Tel. +34 680 34 87 68 Calle Cortina del Muelle, 21, 3ºB 29015 – MALAGA info@perezparras.com Tel. +34 680 34 87 68 MALAGA - ABOGADOS - NERJA