Public Notary

Crossing the i's and dotting the t's with the Public Notary on the Costa del Sol

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What is a Spanish notary?

The notary, plays an important role in traditional Spanish society, along with doctors, the clergy and lawyers. While trust in notaries has recently suffered due to political scandals in recent years, they continue to enjoy a prestigious role in society.

Though their livelihood is earned from private individuals and companies, notaries are for all intents and purposes public officials who play a neutral role in the drafting and witnessing of many types of contracts on the Costa del Sol. The reason for their important is due to the fact that they are there to ensure that the terms of the contract are understood by both parties, that the terms of the contract do not contravene any laws, and to ensure that the relevant taxes generated by the transaction are paid.

Signing public deeds before a notary

When you have found a property on the Costa del Sol that you wish to purchase, unlike the UK you cannot inscribe your title in property, unless a Spanish notary witnesses the deeds of sale. According to Spanish law a notary's signature is required to raise a private contract into public deeds that can be inscribed in the land register. Until signed by a notary, you are not the owner of the property according to property register.

In theory a private contract between buyer and seller is fully binding on both parties (though not on third parties). Some Spaniards, especially in rural areas, own property that is not inscribed in the register, thus saving notary fees, registry fees and taxes of inscription.

However, it is crucial to inscribe the title in the property register, as it is the only truly secure form of property ownership in Spain. The first person to inscribe title to a property gets to keep it, which is all the reason you need. There are other advantages too, for instance protection from the vendor's creditors and the ability to take out a mortgage against

your property. So all buyers need to complete their purchase in the presence of a notary if they are to enjoy the benefits of inscription in the property register.

When can you sign the title deeds?

It depends upon whether you are buying a resale property that already exists, or a new property from a developer that is under construction or off-plan.

When buying a resale property you can sign the deeds before notary at the first convenient time for you and the vendor. The time period between acceptance of the offer and signing of the title deeds varies. As a rule of thumb, it is between 1 and 3 months after signing a private contract. In many cases, to simplify the process a reservation contract is signed between buyer and vendor and completion is set for 1 month after signing. This allows plenty of time for both parties to prepare all necessary paperwork and mortgage (if needed).

When buying a newly built property from a developer you are not obliged to sign the escritura (title deeds) until the developer is able to produce the ‘certificado de final de obras’ signed by the architect.

Preparing for signing

Whatever type of property on the Costa del Sol you buy, the escritura should only be signed once your solicitor has carried out all relevant checks to confirm ownership of the property, that’s its free of debts, etc.

You also need to agree a payment method and structure with the vendor before you turn up at the notary. Bank-guaranteed cheques issued by a branch on the Costa del Sol are the preferred method, though it should also be possible to transfer funds to the notary's escrow account. To avoid a crisis in the notary's office just make sure the vendor is aware of and happy with your proposed payment method, and then get all your funds in place.

Also make sure you have the necessary documents with you when you go to the signing. To buy a property in the southern Spain you will need an N.I.E number. Without number the title deeds will not be transferred to your name.

Though it is always best to attend the signing in person, a power of attorney can be granted to someone to represent yourself. In most cases it is recommendable to give said power to your solicitor. The easiest way to grant power of attorney is to sign one before a notary in Spain, though at greater expense one can also be arranged through the Spanish consulates in the UK or through a British notary. All involved parties, the vendors, buyers and mortgage lenders, have to be present represented by powers of attorney at the signing of the escritura.

What happens in the notary's office?

Upon arrival you are shown into an office with all the parties involved to wait for the Notary. Once all paper work has be reviewed by all parties, the notary will start the proceedings.

The notary will confirm the identity and other personal details of all buyers and sellers present or represented, and then read the deeds out loud. The title deeds will be in Spanish so you need to be sure the deeds are correct before you sign them, which means if you do not speak the language, having a translator present or relying on your lawyer. Some notaries will refuse to sign the deeds unless a proven that the buyer understands what he or she is signing.

As a minimum they should have request a property registry filing just before the signing to confirm the vendor's title, and that the property is free of any (unexpected) encumbrances.

If there are no objections to the content of the deeds the notary will commence the signing stage, followed by outstanding payments by the buyer prior to the keys being handed over.

After signing the deeds

After signing the deeds you are now a Costa del Sol property owner, although there are taxes that still need to be paid and your title inscribed in the property register.

You will be given a copia simple (copy of the deeds) to take away after the signing. The copia simple allows you to set up utility contracts and pay taxes. A few days later your lawyer will be able to collect the original deeds signed by the notary (copia autorizada), which are needed to inscribe your title in the property register. In the meantime the notary should have faxed notification of your purchase to the property registry immediately after the sale, thus blocking the register for 10 days and preventing anyone else from inscribing a claim to the same property during this period.

Notary costs

Notary fees are set by the government according to the number of clauses in the deeds and the valor catastral (declared value of the property). If you use a mortgage then you will have to pay Notary fees on the mortgage deeds as well.