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Procedures and advise on a sale

Buying and selling a property in Marbella

The buying of a property is one of the most important decisions a person can make in their lifetime, which is why it mustn’t be a rash one. We advise trusting in professionals such as those at Berkshire Hathaway HomeServices Marbella, a real estate agency established more than 50 years ago, which without a doubt will give you free advice with complete transparency and honesty or contract a specialised solicitor, so that this way you can buy a property with guaranteed success.

First we must get to know what the current legal situation of the property is. You must know the legality of the property, whether it’s real square footage matches with the registry, whether it does or doesn’t have elements which aren’t to standard, whether its liveable etc. Once the legal aspects have been checked, the following step is to sign a contract between the buyer and the seller.

Procedures before the sale: the private document

In the purchase and sale of a property, the usual is that, prior to signing a public title deed; a private contract between seller and buyer is signed, usually known as a Precontract. This contract is not mandatory, although it is widely used to guarantee the operation and to have a period of time necessary to prepare the required documentation for the signature of the final deed of sale.

The private document is a perfectly valid way to formalise a sale, therefore legally obliging all parties to comply with all its content, provided that it is not contrary to the Law. We emphasise the importance of advising you properly before signing a document of this nature.

Important questions which you should think about:

· 1 Who signs on behalf of the seller?: It is necessary that the contract is signed by all of the owners of the property. In the case of a new construction it is likely that the administrator or a legal representative will sign. Likewise, a representative of the owner may sign, in which case the attorney must present a copy of the authorised power of attorney that authorises him for the sale.

· 2 Situation of property charges: It is very important to check if the house has or does not have charges, if there is a mortgage, or if there are repossessions. We will check it with a simple informative note from the Land Registry.

It’s extremely likely that there is a mortgage. The buyer must assess whether they are interested to take over the same mortgage and become the borrower of the part that remains to be paid, or to take out their own mortgage or buy the property without the burden of a mortgage, in which case the buyer must cancel the existing mortgage registry when signing the deed.

If you are planning to take out your own mortgage you should go to a financial institution to assess the conditions as these can vary a lot. At Berkshire Hathaway HomeServices Marbella we can inform you and recommend which may be the most suitable according to your needs.

· 3 Community fees: If the property is in a community of owners, it is necessary to check that it is up-to-date regarding the payments by requesting this information from the president or the community administrator, and to be informed of the statutes or internal rules that the building has. It is also advisable to find out if there are any extraordinary costs approved by the community, what the amounts are and how often they should be paid.

· 4 Price and deposit: The contract must include the sales price of the property and its form of payment. The usual is that an amount is established as a deposit, which the buyer delivers to the seller as a payment on account of the price.

· 5 Costs of the sale/purchase: This section will be explained and developed in more detail in another section going into detail and analysing each of the expenses, but it is important to know that as a general rule that the sum of all these expenses such as the notarial, registration, taxes... may come to a figure between 10 and 13% of the purchase price.

· 6 Election of the notary: The buyer has the right to choose the notary which best suits him.

Although the private document is completely valid, it is not enough to register the property in the Property Registry, nor to apply for a mortgage at the bank. For this, it is essential to have a document with superior effects, which provides the sufficient security required. It is the notarial public title deed.

The public sale deed

The public deed is nothing more than a contract between the parties, the buyer and seller, granted in front of the notary and although it is not mandatory, it is highly advisable because it has effects that far exceed those that can be produced by the private document. In addition, the professional performance of the notary provides additional information to the parties; it gives security to the contractors and gives efficiency to the business contained in the deed that constitutes the appropriate link for the registration of the property in the Land Registry.

Property purchase: subsequent procedures

Once the property has been purchased through the public title deed, it is necessary to carry out what is called 'the management' of the document:

· 1 Pay the corresponding taxes to the Autonomous Community:

for which there is a maximum period of 30 working days from the date of the signing of the deed, providing a copy of it and the corresponding form. After this period there is a delay and surcharge. If there is a requirement from the Administration, it will also impose an economic sanction.

· 2 Register the purchase in the Property Registry:

The deed can be submitted to the Land Registry telemetrically by the notary if requested, which is highly recommended because this presentation gives the guarantee of immediacy and the blocking of the Property Registry to any other document that could disadvantage us, as a seizure to the buyer or a preventive note of demand to the seller.

The deed can also be presented to the Land Registry by a copy authorized by the notary on paper. There is a security deadline to submit the authorised copy signed by the notary on paper, upon payment of the Onerosa Transfer Tax or, as the case, the Legal Documented Acts. Once examined by the registrar, the property will be registered in the name of the buyer, and the notary will deliver the copy of the deed, with the name change in the register.

These steps can be done personally, or through a representative. On many occasions, when the sale is followed by a mortgage, the financial institution requires that the process is carried out by a certain agency. You should ask in this case how much they will charge for this service.

Important real estate information

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