When we are about to sell a property we have to deal with several administrative procedures, apart from contacting real estate agencies or portals to help us with the sale.
One of the most important, and one that is often forgotten, is to make sure that the property is completely legal.
Believe it or not, it is not uncommon for a seller to be unaware that his property is not duly registered in his name or that there are pending withholdings (liens, mortgages) that were not duly cancelled at the time of purchase.
All of these are formalities that must be rectified when we go to carry out the sale process.
We explain it to you!
How can I know if my property is in a legal situation?
In order to know if our property is in a legal situation, there are several considerations that we must make. For example, we know of cases in which a property has been inherited or is the result of a donation and changes of ownership have been left by the wayside. Or situations in which a property has been dragging along for years with an outstanding payment or a seizure and has been completely forgotten.
Therefore, the most common situations and the steps to follow are as follows:
- Ownership of the property:
For example, in the case of a property, it is essential to check that the property is correctly registered in the name of the person who wants to sell it. To check if the property is correctly registered, it is enough to ask for a nota simple to the registry. If it does not match, we would need the original title deed in order to register it correctly.
It may be the case, as mentioned above, that you have received the property as a result of an inheritance and the property is still registered in the name of the deceased. If this happens, it is necessary to carry out the previous inheritance procedure to put the property in the name of the new owner and seller.
- Liens or withholdings pending:
Another of the situations that can occur and with which we must be very meticulous is that there is some type of retention or embargo on the property that we are unaware of, for example when we receive it as an inheritance.
It is a necessary requirement that the property is free of both types of encumbrances. For this, there can be two different scenarios in case the situation is known or totally unknown to the owner. Please note:
- In the case that the situation is known and that the property belongs to the owner, it must be cancelled prior to the sale. A simple example could be the cancellation of a mortgage or some kind of seizure either by the local town hall or by the community of neighbours for outstanding payments or taxes.
- It is also possible that this lien or outstanding payment is unknown and that it belongs to the current owner. Imagine the case of a mortgage from the previous owner that has not been duly cancelled.
In these cases we must know the reason why this step was not carried out correctly at the time and in the correct manner, as well as locate the documentation that allows us to process the cancellation of these withholdings.
Apart from these cases, it is very common that the property may have undergone changes, alterations or extensions. A necessary requirement is that all these changes are updated and correspond to the description included in the Land Registry.
If this procedure has not been carried out at the time, it will be necessary to regularise this situation by carrying out the Escritura de Declaración de Obra Nueva (if you have the legal documentation) or the Declaración de Obra Nueva por antigüedad (if you built it without the proper permissions).
It is important to point out that not all constructions can be regularised due to age, so it will be necessary to study the situation to see if it can be regularised or not and the implications for the sale.
At MAM Solicitors we have over 30 years experience in helping our clients to manage the sale of their properties, especially when they are not permanently resident in Spain.
If you need any advice, please do not hesitate to contact us.
