Spain: Property in Spain: Legal view - Peter Esders, Chebsey & Co

So what do you do?

The festive season – a time for traditions, socialising and relaxing. You meet somebody at a social event and the usual questions get asked. So how do you know so and so? Have you come far? What are your plans for Christmas? And then there is the question that I dread – “So what do you do?”

Whenever I used to answer “I am a lawyer” I felt compelled to qualify that with something about international law, international property and so on in the hope that it distracts from the idea that I am a lawyer. I remember seeing a TV programme where somebody introduced themselves as a lawyer at a party and received the reply “Never mind” before the other person walked off and dread a similar response.

Now I dread even qualifying my response. “I am a lawyer who helps people with their legal issues in Spain” brings the inevitable response; “There are lots of legal problems with Spanish property aren’t there? I wouldn’t buy there as I have seen lots of stories in the press about people losing their properties.”

How do I answer that? Do I talk about each of the separate problems that have been reported and explain what the actual situation is and how many of the problems are not as bead as have been reported? Do I talk about how often the different issues are often confused to make a big problem? Do I talk about how Spain has problems but also how many other countries have problems too and that sometimes they are even worse than the problems that they have heard about in Spain? Do I talk about how the Spanish government needs to tackle some of the problems head on in order to stop them happening in the future? Do I mention that fundamentally people still want to buy in Spain and that providing that they get a lawyer to help them buy then most of the problems that have been reported can be avoided? Or do I simply say “Yes there are”, wash down another mince pie with a large glass of something and try to change the subject as quickly as possible?

The truth is that there are legal problems with some Spanish property – just like there are in many other countries. There are actually quite a few different problems associated with Spanish property. Some properties have been sold without the benefit of planning permission. Some properties haven’t been finished or are massively delayed because the developer has either run out of money or gone out of business. Sometimes developers have abused the law so that they can build on other people’s land. Some contracts are so bad that they not only take away any voluntary rights that a buyer has but also some of the rights that they are entitled to by law. Sometimes properties are sold without the benefit of Bank Guarantees, which have been a legal requirement since 1968.

I feel very sorry for everybody who is affected by any of these problems. I am also aware that many, if not all, of these problems could have been avoided if the buyer had had a good independent lawyer acting for them in the purchase. But I can’t say that, because at a social gathering everybody claims that if they were buying a property abroad they would have an independent lawyer to help even though statistics prove otherwise.

Of course there are some problems that cannot be spotted by a lawyer. For example, planning permission which is issued by the proper authorities with the correct stamps and seals but which was only issued as a result of the local Mayor receiving a large envelope full of cash is almost impossible to spot. However, I believe that it is too much of a vote loser for the government to penalise too many of those who bought properties in good faith and who did take good independent legal representation.

So which one of the different problems do you want me to start with first? Yes, I agree, maybe we should talk about how you know our hosts instead. How about another mince pie and some mulled wine before we start?

Peter Esders

Peter Esders is a UK Solicitor who studied Spanish law in Spain and who has been dealing with Spanish law for over 15 years. He can be contacted at Chebsey & Co, 51 London End, Beaconsfield, HP9 2HW www.chebsey.com Tel; 01494 670440