Clichés exist because there is a grain of truth in them. This also applies to buying a house in Spain, but even when selling a property, you must be cautious not to unknowingly face all kinds of unnecessary, expensive, or sometimes even impossible conditions.
In Spain, most buyers (if they are wise) are represented by a lawyer. This lawyer will, of course, try to structure the transfer as favorably as possible for the buyer. Therefore, it is common for conditions related to the transfer to be included in the purchase agreement, and sometimes even in the reservation, which seem simple and harmless, but in practice often lead to uncertainty and additional costs.
One document that the seller would prefer not to be obliged to provide is the “Certificado de no infracción urbanística”: the municipal certificate stating that there are no ongoing proceedings for urban planning violations such as illegal construction. If you are not the first owner and are not exactly sure what the previous owner did to the property, you cannot always be certain whether all construction was done legally. If construction was not legally approved, this does not necessarily mean it’s a problem, but it does require extra attention. If a buyer wants this certificate or has questions about the existing construction, always consult a lawyer.
This certificate can, by the way, be requested from the municipality, but it can take months for them to respond. As a seller, you don’t want to risk the sale not proceeding because the municipality is not doing its job. Municipalities often don’t meet deadlines, or they just do not respond.
Take, for example, the ongoing debate about the obligation to provide the occupancy permit or certificate of habitability. This article is not the place to delve into the technical side of these documents, as there are various types and timelines often used interchangeably. For example, we could talk about the first or later occupancy permit (“Licencia de ocupación”), but also the municipality’s certificate of habitability (“Cédula de habitabilidad”) or an architect’s certificate of habitability (“Declaración responsable de habitabilidad”).
Even among Spanish lawyers, there is disagreement on whether or not the seller is obligated to provide the occupancy permit or certificate of habitability. Keep in mind that Spain is divided into different regions, each with its own laws in addition to national legislation, which are not always clear or aligned. Additionally, in Spain, “custom” also plays a significant role.
In practice, the buyer usually wants the seller to provide the occupancy permit or certificate of habitability, while the seller would prefer not to be obligated to do so.The buyer wants this document because it confirms that the property meets the standards of habitability, but it is typically only necessary if you plan to apply for a tourist rental permit or sometimes for reconnecting water services.
The seller often does not want to be obligated, as obtaining the document takes time and usually costs money, but you are also dependent on the municipality, which can take months to issue such a document. Once again, as a seller, you don’t want the sale to fall through because the municipality isn’t doing its job.
In most parts of Spain, a transfer can proceed perfectly well without these documents (unless it is new construction). Unlike the energy certificate, there is no government penalty if the transfer is completed at the notary without these documents. It is also not an obstacle to registering the deed of transfer at the Land Registry.
In fact, for some properties, there is no municipal occupancy permit or certificate of habitability at all. Think of properties in rural areas where there is no water or electricity connection. In such cases, an architect can issue a certificate stating that the property meets habitability standards (if it does), which can then be used to apply for utility connections.
Another major issue is whether or not to register the correct square meters of the building and/or land. This is a separate chapter, as we are not dealing with a single “Cadastre” system as in the Netherlands. In Spain, you have the Registro de Propiedad and the Catastro (Property Tax Register). These often do not match each other, nor do they necessarily match reality.
There may also be construction that was done without a permit, but the statute of limitations has passed, and the municipality can no longer take action. It’s even possible that the construction has already been included in the property tax register, and taxes are being paid on it. However, it may also be the case that that building cannot be included in the Property Register, e.g. if there is ‘horizontal ownership’. Think of an urbanisation or apartment complex. Not being able to register the construction does not always mean there is a problem with the property, but as a seller, you cannot always be forced to register everything correctly because sometimes this is simply not possible in practice.
The range of potential obstacles in a sale is almost endless, so the above text contains only a few common examples. Selling a house yourself? Be sure to get proper advice from a Spanish lawyer who specializes in real estate before signing anything!
Ilonka Dekker