Buy property in Marbella
This guide sets out essential information for foreiners looking to buy property in Marbella and in fact also in Spain, including advice on legal instruction, buying in Marbella and other areas of Spain, and much more. It should be read together with the ‘How to buy property abroad’ guide (How to buy a home in Spain – Marbella Unique Properties). Marbella Unique Properties are able to provide full guidance on individual property purchases.
Legal advice
It is strongly recommended that you choose a lawyer who is specialised in Marbella land law (urbanismo). The Spanish property conveyancing system is different to the other countries and you should ensure that those involved in the transaction are qualified professionals who have expert knowledge of the system. Exercise extreme caution if a real estate agent, promoter or lawyer urges you to cut corners to save money or time.
If you choose to work with local real estate agents, promoters or lawyers, check that they are qualified, reliable and have experience operating in Spain. If your lawyer is based in Spain, ask for their registration number and check that they are registered and practising with the local law association (Colegio de Abogados). You should also check that your lawyer has professional indemnity insurance and not sign any papers or hand over any money until you have taken independent legal advice.
Should you become involved in a property dispute in Marbella, but do not have sufficient means to meet the costs of a court case, you can apply for legal aid. More information is available on the European E-Justice Portal. Applications for those resident in Spain should be directed to the local law association.
Please bear in mind that if you do become involved in a property dispute, you may need to seek a new lawyer with specific expertise in the field of litigation you wish to pursue, e.g. specialist civil lawyers for compensation claims against private parties such as agents, developers or banks, and specialist public body litigants (contencioso administrativo) for claims against local, regional or state authorities.
Translators
If you do not have a good understanding of Spanish, make sure that you have all contracts and relevant documentation translated by an independent translator. You can find a list of accredited translators and interpreters in Spain on the Spanish Ministry for Foreign Affairs website. Marbella Unique Properties offers their contracts in english at your request and spanish suggest profesional translator.
Mortgages
You should analyse and compare a range of different products and services offered by different banks. If you have any doubts about the terms and conditions, ask for clarififications. You should also check that the lender is listed as authorised to operate in Spain with the Bank of Spain.
Look for the mortgage which is most appropriate for your capabilities and needs. There are a range of mortgages on offer and you should pay special attention to the interest rate and repayment period, fees for setting up the mortgage, as well as, early repayment and cancellation fees.
If you cannot keep up the mortgage repayments, the Spanish bank could repossess your property in Spain. Make sure you fully understand the mortgage agreement you sign. Further information on mortgages in Spain is available from the Spanish Mortgage Association.
Taxation in Spain
The Spanish tax authority is called the Agencia Tributaria. It provides some information on its website in English. Brief information on taxation is provided within the Living in Spain guide.
Avoid Fraud
Further information is available in the property fraud guidance.
Complaints against the legal system
If you believe your lawyer has been negligent and has not met their obligations, you should complain in the first instance to the provincial law association. If the response is unsatisfactory, you can take your complaint to the regional and then national law associations. Complaints should be in writing and in Spanish. A full list of law associations around Spain can be found on the website of the General Council of Spanish Lawyers. If you have a complaint about the way a court has handled your case, you can present a complaint to the General Council of the Judiciary.
Visa/residence requirements
Residents requirements in Spain are stated clearly, Marbella Unique Properties advise you to contract a lawyer to help guide you through the complete process.
Purchaser’s checklist
Before you complete your property purchase in Marbella you should make sure that:
– You have seen the Land Registry extract (nota simple) , available from the Colegio de Registradores (translations into English for an additional fee) or the Marbella’s Land Registry at street Ricardo Soriano.
– The property and land for sale match the details registered and the sellers are the registered owner(s)
– There are no debts or charges, such as a mortgage, on the property
– There are no legal proceedings initiated against the property for contravention of land planning law
– You have checked that planning permissions are in order and the property is a legal build. This is particularly relevant when buying off-plan or direct from a developer. The town hall can inform you whether the building has all licences, permissions and provide details of the type of land. If the property is built on rural land or land that is not classified for construction, additional confirmation should be sought from the regional government as to whether they have authorised the construction
– If you are buying an off-plan property, confirm that the property has been certified as finished by a registered architect and registered as a new build in the property register. The registration should also provide details of the developer’s insurance against structural and other defects in the construction. In the case of a private build (the previous owner built their own house and decided to sell before ten years had lapsed) you will need to request these details separately
– You have checked the latest Marbella town plan to see whether or not the plot you wish to buy has any building restrictions, is in a green zone or includes a public pathway or similar. This can be viewed at to the town planning (urbanismo) department of the local town hall, street Alonso de Bazán in Marbella.
– You know the cadastral value of the property and how much purchase tax will be due. Be aware that tax is charged on the council’s valuation of the property as opposed to the amount of the sale. You can check this at the regional government’s online tax agency site using the cadastral reference number.
Make sure you have seen the following documents:
– A paid-up receipt for the previous owner’s annual property tax (IBI). It is also wise to have a certificate from the Marbella town hall proving that there are no unpaid rates from previous years
– The Catastral certificate giving the exact boundaries and square metres of your land. The Cadastral record will be linked to the Land Register record by a cadastral reference which will be included in both records. You should ensure that the property and land description contained in both records matches
– The licence of first occupancy or habitation certificate which is issued by the Marbella town hall. You will need this document to connect to electricity and water companies, etc…
– Receipt to prove all utility bills have been paid by the previous owner,
– If applicable, a certificate signed by the President of the Community of Property Owners stating that there are no outstanding debts. You should be aware that if you later find that there are such debts outstanding, as the new owner, you assume the debts for the current and previous year (two years in total)
– As from 1st June 2013, all homes for sale or to let in Spain are required by law to have an energy efficiency certificate. If you are considering buying a property, the seller is obliged to show you this certificate, or ask Marbella Unique Properties for this documentation.
On completion, the public deed should reflect an accurate description of the property. It is advisable that you register the property in your name with the Land Registry as soon as possible to ensure full protection of your rights. The notary can even send advance notification to the Land Registry electronically once the public deed is signed.
Buying property in certain areas
If you are considering purchasing a coastal property in Marbella your lawyer should contact the Coastal Demarcation office in your region to receive a certificate to certify that the property is not affected by the 1988 Coastal Law. Bear in mind, that while it is possible to view the coastal boundaries of the public maritime areas online on the Environment Ministry’s website, this may not provide sufficiently accurate information on which to base a property purchase.
Exercise extreme caution if the Land Registry record shows that the property you wish to buy is built on rural land. In normal circumstances, this type of land is reserved for agricultural use and you would need to undertake additional checks with the municipal and regional authorities to ensure that full planning permission has been obtained for residential use. It is strongly recommended that you choose a lawyer who is specialised in Marbella land law (urbanismo).
Buying property off-plan
Buying off-plan property in Marbella inevitably involves higher risk than buying re-sale property. If you are considering buying off-plan in Marbella and or Spain there are a number of points to consider.
Make sure you have a bank guarantee (aval bancario) to cover your stage payments. Developers of off-plan properties are legally obliged by Spanish law 57/1968 to secure all deposits with a bank guarantee. You should ensure that this guarantee is individual and not a collective guarantee covering the whole development, which does not provide the same protection. You should also request proof that your payment has been deposited in an escrow account, which can only be used for construction of the specified development.
Make sure the developer you are signing the agreement with is registered with the Mercantile Registry and the person who is going to sign on the developer’s behalf has the legal power to do so. You can visit any Mercantile Registry office or use the registry website.
Check with the Land Registry in Marbella on Street Ricardo Soriano to make sure the land which is going to be built on is registered to the developer you are doing business with. Make sure you obtain a copy of the Cadastral certificate giving the exact boundaries and square metres of your land. Ensure the developer has insurance covering damage caused by structural defects to the building. This insurance should be included in the property manual (libro del edificio) that the developer gives you.
Check the project has planning permission. Make sure the planned building has been authorised by the town hall through the correct licensing procedure, and has approval from the regional government. You can check this at the Land Registry, because if the description of the future building is registered, the registrar will have seen evidence that the licence exists and work has begun in accordance with the approved design.
If the building’s description is not yet registered, visit the Marbella Town Hall to find out whether the land is classed as suitable for development. If the property is to be built on rural land or land not classified for residential construction, you should exercise caution and obtain additional confirmation from the regional government that the development is authorised. It is also advisable to obtain a certificate regarding the planning situation of the plot you wish to buy from the Town Planning (Urbanismo) department of the Marbella town hall. This will include other information such as whether the plot has any building restrictions, is in a green zone, includes a public footpath or if there are any current plans to build a motorway etc.
Once construction has finished, and before you sign the title deed, ask for proof from the seller that the construction has been finished in accordance with the description given in the plans. This is issued as a certificate (certificado final de obra). You can also check this at the Marbella´s Land Registry, avenue Ricardo Soriano.
Make sure you have the licence of first occupancy (licencia de primera occupación) which is issued by the town hall for new buildings and certifies that the property is habitable. You will need this document to connect to electricity and water companies. Developers cannot force you to complete the purchase without this licence.
Consider asking a chartered surveyor to check the property. This is not obligatory but it is wise to obtain a professional opinion on the property before you complete. The Royal Institute of Chartered Surveyors (RICS) exists in Spain and there are residential chartered surveyors working across the peninsula and the islands. Members of the RICS are qualified and experienced professionals offering independent and impartial advice. The Spanish College of Architects in each province also offers a list of independent specialist surveyors. Should the developer not build your property within the timeframe stated in the contract, or services and utilities are not completed and connected to standard, or the habitation certificate cannot be issued, you are legally entitled to either:
– Rescind the contract and have the deposits returned plus interest
– Or extend the deadline, allowing the developer to complete the property
If you want to rescind the contract, it is advisable to seek independent legal advice. Once you have consulted a lawyer, the first step is to write to the developer to explain that due to non-compliance with the contract, you want to rescind the contract and request that the deposits paid so far are returned, as well as the accrued interest. You should include any relevant documentation (e.g. a copy of the contract, copies of payments made, copy of the bank guarantee) and state a timeframe by which you want the amount to be reimbursed. It is advisable to write to the developer via Burofax, which enables you to prove that you have sent a specific document, and that the recipient received it.
If the developer does not respond to you within the specified timeframe, you should contact the claims department of the bank or savings bank responsible for the guarantee to request a refund of the payments made. Again, it is wise to make contact via Burofax and attach copies of all relevant documentation, including a copy of the bank guarantee, a copy of the complaint submitted to the developer, a copy of the developer’s response (if any) and copies of any documents which indicate that the developer has not complied with the contract.
Should the bank not comply, the only remaining course of redress is to instruct a lawyer to take a civil case against the bank. If you believe you have been a victim of fraud and you have neither a bank guarantee nor an insurance policy from the developer, you should seek independent legal advice regarding taking criminal legal action through the courts and register a statement with the police.
Renting out your property
As from 1st June 2013, all homes for sale or to let in Spain are required by law to have an energy efficiency certificate. If you are offering your property for rent after this date, you will need to obtain an energy certificate first.
Short-term lets
If you want to let your property to tourists on a short-term basis, you must ensure that you are doing so in accordance with Spanish law, please contact us at Marbella Unique Properties.
If you are planning on making a return by renting out your property on a short-term basis, it is best to seek independent legal advice and check the rules in the Marbella town hall or at the tourist department of the regional government before you buy. Be aware that the marketing of private residential property to tourists is strictly regulated in many regions of Spain.
Owners who are caught illegally advertising or letting out their properties without complying with local legislation can be liable for significant fines, in some cases reaching as much as €30,000. If you are planning to buy an apartment which is part of a residential block, you should also check whether there are any rules set by the committee of owners that prohibit or restrict short-term letting. You may want to consider hiring a Spanish letting agency Marbella Unique Properties is pleased to assist you finding tenants, drawing up rental contracts and managing the property on your behalf.
Long-term lets
Owners who let their properties on a long-term basis are free to do so within the terms set out by the national rental law. However, it is worth seeking professional advice to make sure that you are complying with Spanish legislation and that you are using the correct rental contract.
In Spain, there are different types of contracts depending on how long the property is due to be let out for. You can get copies of these contracts from local tobacconists. It is strongly recommended that you choose an agent who is specialised in Marbella and surroundings such as Marbella Unique Properties.
Letting taxes
You must ensure that you declare your rental income to the Spanish tax authorities (Agencia Tributaria) whether you are resident in Spain or not. Taxation is a complex issue, and it is advisable to seek the advice of an accountant or professional tax adviser with comprehensive and up to date knowledge of both the UK and Spanish tax regulations.
Equity release schemes
Equity release schemes are designed to allow homeowners to release equity from the value of their property as income, a lump sum or a mixture of both. A reverse mortgage (hipoteca inversa) is one form of equity release which allows homeowners to borrow money against the value of their home, which is used as collateral. Reverse mortgages are generally marketed at retired homeowners who are over 65 years of age.
If you are considering an equity release scheme, a reverse mortgage or lifetime loan, it is advisable to check that the company offering the mortgage is registered with the financial regulator for the securities markets, the Comision Nacional de Mercado de Valores (CNMV) and that they do not have any warnings issued against them.
A list of financial companies which are not authorised to operate in Spain and those subject to an ongoing investigation is available on the CNMV website. Seek independent legal advice prior to signing any contracts to make sure that the information the company has given you is correct, there are no abusive clauses in the contract and you are fully aware of your obligations and rights.
Be suspicious of financial companies or agents who try to persuade you into signing a reverse mortgage agreement as a way of avoiding or reducing your tax obligations. If you have any concerns about your tax obligations (for example inheritance tax) you should seek the advice of an experienced professional tax advisor who can advise you independently. Alternatively you may wish to check with the Spanish Tax Office (Agencia Tributaria).
If you are not happy with the scheme you have been sold, the first step is to submit a complaint to the company responsible for your investment. If, after two months, you are not satisfied with the response or do not receive a response, you are entitled to complain to the CNMV.
Although the CNMV final reports are not binding, they will comment on the conduct of the company or person against whom the complaint has been made. Where the report favours the customer, the company involved is required to notify the CNMV of action taken to resolve the matter. If you believe you have been a victim of a fraud involving an equity release scheme you can register a statement with the police and seek independent legal advice on taking action through the courts. Further information for victims of fraud is available on the fraud page.
Problems with timeshare property
Timeshare ownership is well established in Spain with many respected companies, agents and resorts operating legally and fairly. However, there are also many unscrupulous companies, some of which claim to provide various incentives (including stock market investments and discounts on airfares and accommodation) when exchanging existing time-share ownership or taking out membership of holiday clubs. You may find it useful to read the timeshare fraud advice from Action Fraud, the UK’s national fraud reporting centre, run by the National Fraud Authority.
Other sources of advice
The Spanish Land Registry publish a guide in English – How to buy a home in Spain: step-by-step.
Spanish Property Insight provides information and advice on buying a property in Spain.
Expat forums, English-language newspapers and talking to local residents including other British nationals who have already made the move can really give you a feel for an area and give you the inside track on any local problems.
The Spanish Ombudsman is responsible for defending the fundamental rights and civil liberties of citizens by monitoring the activity of public authorities. If you have a complaint about any public authority, you can submit a complaint to either the regional or national ombudsman. If you are facing problems with your property in Spain, there are many residents associations who may be able to provide support and advice as well as put you in touch with others who have had similar experiences.
Although the best option is always ask to an expert agent to avoid this problems, do not hesitate to contact us at 952 908 712 or visit our offices located in Puerto Banus.
Source and more info here.