PURCHASE AND SALE OF REAL ESTATE
SALE - BASIC TIPS
Our experience in the sector has shown us that all those who want to buy a property and real estate need a lawyer when acquiring it, since there are many valuations to take into account, so as not to have unpleasant surprises in the future.
The acquisition of a home or any kind of real estate is always an important decision, both from an economic and personal point of view, especially when it is acquired with a certain vocation for permanence.
For this reason, and before making any purchase decision, it is advisable to carry out a series of checks to know exactly the physical and legal situation of the property that we are trying to acquire, which will depend a lot on the nature or type of real estate in question. .
These precautions and checks will help us to avoid problems in the future.
1- USED HOME:
If we are interested in buying a used home, first of all, we will have to check very well the physical state in which it is.
Carrying out an inspection together with independent technicians or experts (architects and quantity surveyors mainly) is always useful and convenient, since this will allow us to detect the existence of possible hidden construction defects (not apparent, or unnoticed) that in the medium or long term could reach compromising our comfortable stay in the home, or even safety (think of the appearance of dampness due to defective waterproofing, foundation problems, differential settlements, cracks, etc.)
Once the physical condition of the property has been verified, it is essential to go to the Property Registry to verify that the seller is really the owner of the property that is being transferred, that there is no circumstance that affects its ownership, debts that may be respond to the property, or limitations of any kind or nature.
Before granting the deed of sale, we must make sure that the house has the appropriate certificate of occupancy, and we must also request the corresponding energy certificate from the seller. Both documents are necessary both to rent the house and to sell it, and subsequently register the sale in the Property Registry.
The Certificate of Habitability is the administrative document that certifies that the dwelling meets the minimum requirements of habitability required by law. Keep in mind that without this document you will not be able to contract the supplies that the house is equipped with, and that it is subject to an expiration period, so it is important to check that it is valid.
Currently, together with said certificate, it is also mandatory for the seller to have the Energy Certificate. This document shows, on a scale of seven letters (from A to G), the degree of energy efficiency of the property we intend to acquire. It is therefore an important document, an added element in decision-making, since it will allow us to assess and compare the energy efficiency of the different buildings that interest us, perhaps influencing, in a more or less decisive way, the our final purchase decision.
HOUSING UNDER HORIZONTAL PROPERTY REGIME
Thinking of a flat located in a block of flats, it is important and convenient to verify the content of the community statutes, and other internal regulations.
Thanks to your prior consultation, we will know the limitations of use that may affect the department that we intend to acquire, what is the contribution scheme for community expenses, participation coefficients, etc., avoiding later surprises.
At the time of formalizing the Public Deed of Sale We must also demand a new certificate from the seller, this time issued by whoever holds the community secretariat, stating that the property being transferred is up to date with all community payments. This is important since we could be responsible for the pending community expenses of the current year and the calendar year immediately prior to the transfer with the dwelling itself, according to the provision contained in article 553-5 of the law on the legal regime of the horizontal property in Catalonia.
Something very similar happens with the Real Estate Tax -IBI-, which is a tax that is levied periodically on the property, or the ownership of the asset (for this reason it accrues on January 1 of each year, it is paid by the owner on that date, and it is calculated based on the cadastral value). If there are pending taxes of this type, the property will also be responsible for them by principle of real condition, so it is convenient to always check, and before the sale, that the home is up to date with these payments.
Finally, it must be stated in the public deed of sale that the property is free of tenants and occupants, since it must be borne in mind that the lease or tenancy contracts may not be registered in the Property Registry.
2. NEW CONSTRUCTION HOUSING:
If our wish is to acquire a newly built home, it is important to ensure that there are no pending urban charges, and that the promoter has obtained the
First Occupation License,
corresponding to the property to be transferred. Without this last document, it will not be possible to register the supplies (water, electricity, gas and telephone) and it is even possible that there will be problems registering in the dwelling.
The request and processing of this license always corresponds to the promoter. When the latter builds, it contracts a whole series of formal obligations with the public administrations, related both to the fulfillment of the project, as well as to the environment of the urbanization, or to the repair of urban furniture that may be damaged during the course of the works, so that the granting and obtaining of said license is always subject to the previous fulfillment of all these duties by the promoter.
Since May 2000, and by virtue of Law 38/1999 on Building Regulations, the promoter of any new building must also have a ten-year insurance policy, which is responsible for possible vices or structural defects that appear during a period of 10 years. Insurance for finishing defects, or for defects that affect the habitability of the dwelling, do not yet have this mandatory character, being the time period provided for them 1 and 3 years, respectively, so that it is convenient to inspect the construction finishes, as well as all those elements that may reasonably later affect the correct habitability and/or comfort of the home.
The actions to demand responsibility for damages arising from vices or defects in the construction prescribe within a period of two years from the time they occur, without prejudice to the actions that subsist to demand responsibilities for breach of contract.
If the apartment we wish to acquire is still in Building process (“purchase on plans”) it is convenient to know that the promoter is legally obliged to ensure or guarantee (normally by means of a bank guarantee) the return of all the amounts received from the buyers on account of the price or as an advance or advance payment of the sale.
These amounts are usually allocated by the promoter to partially finance the construction of the building itself, so that we must not forget to demand this type of legal guarantee.
Both in the case of new homes and in the case of homes under construction, it is advisable to keep all the information/documentation provided by the developer, whether advertising or not, in case there is a need to claim for defects in the formation of consent or because the benefits it has The delivered home does not correspond to or differ from those that were promised and offered by the seller.
Contracts for the sale of homes under construction are usually of the so-called adhesion contracts, since they are standard contracts, with clauses predisposed by the seller, which are imposed on all purchasers of the development in question, with the possibilities of negotiation being practically nil. for buyers. In these cases, and to avoid possible abuses and imbalances, it will always be necessary to bear in mind the consumer regulations (General Law for the Defense of Consumers and Users and other complementary regulations)
3. ACQUISITION OF LAND TO BUILD:
We did not want to finish this work without making a brief reference to the acquisition of land, in case what we want is to buy a certain plot, to project our home on it.
In these cases, it is often advisable to carry out an environmental study beforehand, since it must be borne in mind that Law 22/2011, on waste and contaminated soil, imposes on the owners of the land the obligation to undertake and pay for the decontamination work of the soil in case it has not been possible to identify the effective cause of the contamination (it is a subsidiary responsibility).
Therefore, it is still important to hire this type of environmental studies, mainly if we intend to acquire land on which dirty, harmful or polluting industrial activities have been carried out or are suspected.
In these cases (purchase of land to build on) it is also highly recommended to negotiate a good contract for the execution of works with the builder or designer of your choice, hiring the services of an expert lawyer to provide solutions to any of the eventualities that may arise during the construction process.
Establishing a good regime of penalties for delays in delivery, installment payments for sections of work actually executed and certified, express acceptance of modifications and improvements, etc., are issues that are not insignificant or transcendent in a matter that, often, generates litigation.
If we decide to do the latter, we will be considered promoters, for all legal purposes, and as such we will be responsible for the construction. Therefore, it is advisable to be well advised throughout the process.
