Surveys show that there are around 800,000 people in Europe looking to buy in Spain at the end of 2000, with only 65,000 properties available for sale on the coasts. This imbalance should ensure that prices on the coasts generally continue to rise more than the average for Spain. Whilst in the early years most properties were bought as holiday homes, in recent years around two-thirds have been for retirement, but as younger people are becoming increasingly affluent, the demand for holiday homes is again becoming more important. German and English people each account for around 30% of the total; France & Benelux account for around 7% each; and Italy and the Scandinavian countries around 5% each. Around half the properties were owned by foreigners who had obtained residencia in Spain, and the other half by non-residents. In earlier years, many foreigners bought property through an offshore company, but (with certain exceptions) the latest changes in taxation encourage foreigners to obtain residencia, and buy in their own names.

New house prices in Spain rose by 13% in 1999, and by 14.8% in 2000. In 1999, in parts of the costas, such as around Nerja where the motorway connection to Malaga is being completed, the rise was around double this figure, and in Majorca it was 23%. In 2000, some areas, such as Estepona, Fuengirola, Benalmádena, Marbella and Torremolinos, experienced a noticeable increase in demand, combined with a lack of new properties coming onto the market, as a result of which prices rose by up to 19%. But prices along the coasts vary considerably: according to data from the valuation firm Sociedad de Tasación, the range of price rises along the costas between March 1999 and March 2000 was from as low as 1.1% to 17.8%. Property prices in Spain have generally grown at or above the rate of inflation over recent years.

 One technical reason for this is that tax and legal changes have ended a common earlier practice of undervaluing property to reduce tax payments. During the late 1980’s and early 1990’s the market was affected by the economic situation, as in the UK. For new properties, in 1987 the average price per square metre (the normal way of comparing prices in Spain) was EUR 420, and for existing properties, EUR 270; during the boom years to 1991 this roughly doubled to EUR 840 and EUR 630 respectively. But then after the stock market crises and the rise in interest rates, these prices fell to EUR 720 and EUR 570 respectively by 1994. As in the UK, during 1999 average prices have once again passed their earlier record high, reaching an average of EUR 945 for new properties.

It is also the case that prices vary considerably even within small areas: in the Province of Alicante for example, if we look at the 10 most popular locations for foreigners, the average price/m² in 1999 varied from EUR 600 in Pilar de la Horadada, to EUR 1,020 in Altea. The average price in Torrevieja and Elche was EUR 755, in Javea EUR 875, and in Calpe EUR 885. Inland, the prices can be much lower: in Petrer, a town 40 kilometres inland from Alicante, the average price was just EUR 462. These are average prices: there can also be a huge difference between minimum and maximum prices for new properties in the same place: for example, in Villajoyosa, the minimum price/m² was EUR 371 and the maximum EUR 1,502. These higher prices for new property are partly due to the higher standards of construction today (for example, the new Ley de Ordenación de la Edificación took effect in May 2000, which requires builders to take out an insurance (seguro decenal) against major structural faults for 10 years, and it is estimated that this will add between 1.2% and 4.0% to the cost of property).

 But the main reason for higher prices for new property is the high cost of obtaining building land in some areas. For example, in the provinces of Alicante, Castellón and Valencia over 80% of the costas have been zoned for development, and there is still huge demand for building land. It is therefore likely that over the course of the next few years, all available land will be developed, and only the “green” zones are likely to be spared. In 1999, foreign investment in property in Spain increased by 31.6% compared to 1998, and totalled over EUR 2bn. (£1.25bn.) Of this, 42% was in the province of Andalucia. On average, the highest prices were also in Andalucia where 27% of foreign purchases were for properties of more than EUR 205.000 (around £125,000), and the lowest prices were paid in Murcia, where the most popular price range was EUR 60.000 – 78.000 (around £35,000 - £47,500).

 This brief overview highlights the fact that prices on the costas can vary tremendously: they are affected by the economic situation locally (such as the availability of land in relation to the demand, and hence its price); as well as in Spain generally (such as the rate of inflation, the availability and cost of building workers, and the level of taxes); and across Europe (as the market is largely “discretionary” – i.e. people can choose whether to buy or not, and are not forced to buy in any particular place by reason of their work or family - demand will rise above average when the European economy is doing well, and will fall dramatically when it goes into recession. In some areas on the costas, at the end of the 1980’s, prices fell by as much as 50%.)

 One general point is worth making here: a common complaint amongst foreigners living in Spain is about the lack of telephone lines, postal services, health services etc. The subsidies from the state and regional governments to the local municipalities for these services are entirely dependent on the number of people registered in the “Padrón Municipal”. This has nothing to do with residence, and does not entail any other obligations. It is simply a register of all the people living in the municipality. You can enter your name in the padrón municipal whether you are resident or not – the only requirement is that you own a house in the municipality which you use for at least some part of the year (if only 1 week). many non-residents do not know about the padrón, and this is one of the reasons why services may appear not to keep up with the growth in the local population. So, support your local council and register in the padrón municipal.

We have prepared this guide because the Spanish market is very different from that in the UK: two examples will help to illustrate this: (1) in Spain, contracts are validated by a Notary Public, when they become “public deeds” – this process only creates a valid act in law; contrary to what some people think, it does not substitute for carrying out the necessary pre-contract enquiries either yourself or via your solicitor; and (2) when you agree to buy a new property being built by a developer, the property will not become yours until it is completed and the necessary certificates issued; in the meantime, you will be expected to make advance payments, which should be protected by a bond or insurance guarantee. In spite of these differences, it is quite unbelievable that during the 1980’s over half the foreigners buying property in Spain did not use a solicitor, and the figure is still around 20% - it is not surprising therefore that some people have problems! You would not dream of buying a house in the UK without using a solicitor – and in Spain the differences make it even more necessary.


We also recommend membership of FIPE (the Fundación Instituto de Propietarios Extranjeros) which publishes a regular bulletin containing much interesting news and information, for foreign property owners in Spain. Their address is given in the next section.


2. Finding the Property

If you have friends who have already bought their home in the sun, or sporting interests such as golf or tennis, then you will already have a starting point. If you’ve fallen in love with a place after visiting it on holiday, you will probably go back to see all the local estate agents. But a word of caution here: locations that are ideal for holidays may not be so ideal when you are there all year round. For one thing, you could find that in the summer months you can’t move for tourists! It may be better to look at quieter towns or villages nearby. But if you are starting with a clean sheet, at www.ukmaspain.com you will find a page called “Property Finder”, where you can submit a request not only for a property to buy, but also for an estate agent, lawyer or removal company. The requests are then e-mailed automatically to those agents who have registered with us, whose services match your search criteria. We would naturally recommend that you start your search here.
Consumer Organisations:
Fundación Instituto De Propietarios Extranjeros, Apartado de Correos 418, E-03590 ALTEA,Alicante, Spain. Telephone: 00-34-965-842312; Fax: 00-34-965-841589; E-mail: ifpo@ctv.es (Membership costs EUR 53 – as at May 2000)
Trade Associations:
FOPDAC, the Federation of Overseas Property Developers, Agents and Consultants – represents agents who agree to a Code of Conduct. They can be contacted at: 3rd Floor, 95 Aldwych, London, WC2B 4JF. Telephone: 020-8941-5588; Fax: 0181 941 0202; E-mail: info@fopdac.com. Website: www.fopdac.com FOPDAC members can be contacted through the website, which also has information and a property search facility.
UK estate agents (FOPDAC members):
There are currently (May 2000) 65 members of FOPDAC, who can all be contacted through the FOPDAC website at www.fopdac.com
UK Publications:
There are some specialist magazines devoted to this market, which contain useful articles and a large number of advertisements from professionals, such as estate agents, lawyers, removal companies, currency dealers, and flight ticket agents. Contact details are provided on this page. Please mention mortgages-in-spain.com when contacting them – thanks! All these magazines are available on subscription, and some may be on-sale in major newsagents. Subscription rates quoted below were valid in the last quarter of 2000, and may have increased subsequently. Spanish Homes Magazine:

3. Estate Agents

There are many estate agents on the costas, both English and Spanish (as well as other nationalities), mostly serving a small local area, but some of which – such as Century 21 – are large international franchises. Many of them advertise in the media mentioned above It is no longer necessary for an estate agent in Spain to be qualified, so it is always an idea to look for an agent who is a member of a professional body - either an “API” (agente de la propiedadinmobiliaria), or a “GIPE”. Normally these agents will automatically have professional indemnitycover provided by their professional bodies, but in any case – and especially if you are buying
through an agent who is not a member of one of these bodies - you should check that they dohave such cover in force.If you are buying from an estate agent in the UK, make sure he is a member of either FOPDAC orthe National Association of Estate Agents (NAEA).f you are buying through an estate agent based in the UK, you should ensure that he operates abonded clients’ account, into which any deposit or other money you pay him on trust will be deposited. This should be an account which is untouchable except for the stated purpose of the deposit (an “escrow” account). If you pay your deposit to the agent, make sure it is paid into this “escrow” account so that it is blocked and neither party can touch it until the sale is completed. In Spain, where this legal provision does not exist, make sure that the agent’s professional ndemnity policy covers misuse or misappropriation of any monies paid on deposit.


4. Using a lawyer

I n the “Introduction”, we have already explained that the differences between the Spanish and UK markets mean that you should use a lawyer. We have also pointed out that this guide is intended to help you, but it cannot substitute for proper legal advice. We advise appointing a lawyer based in the UK, who has an association with a Spanish lawyer. In this way you get the best of both worlds: advice and information in English so that you can relate issues in Spain to the UK property market which is more familiar, as well as the necessary legal presence, expertise and representation on the ground in Spain. A lawyer may also be able to act under a Power of Attorney (poder) on your behalf in signing documents etc., which could be useful if you are unable to be in Spain on the required dates (for example, at the Notary’s office).

5. Pre-Contract Enquiries

If you have found the property you want to buy, and have agreed the transaction with the agent or the vendor, the first step in Spain is usually (but not always) to draw up and sign a Sale & Purchase Pre-Contract (Pre-Contrato de Compraventa). It is usual to agree in this pre-contract that a deposit - normally 10% - is paid at this time. When a pre-contract is signed, it is binding on both parties, so a big advantage is that gazumping cannot occur. Make sure that the deposit is paid under a specific agreement called an arras. Under an arras agreement, either party may withdraw: the buyer will lose his deposit and the vendor will have to return double the amount deposited. If such an arras agreement is not entered into, then the only recourse if either party fails to complete is to sue the other for breach of contract. (More on this
contrato below).

But equally do not sign anything without it being checked first by your solicitor – if it is the contrato de compraventa, you are committing yourself to the transaction! The contrato de compraventa is only valid if it is signed by both vendor and purchaser. It can only be signed by other parties, such as the vendor’s estate agent, if they have a notarised power of attorney (poder). Also, before you sign the contract, you need to see the following:

1. Proof that the seller actually owns the property and of any charges: the only certain proof is a certificate (certificación) from the Property Register (Registro de la Propiedad), which your lawyer will be able to obtain. But most people rely on an extract (Nota Simple), which is also issued by the Property Register: this is much cheaper to obtain than the certificate (around EUR 3 + VAT instead of EUR 36 – 42 + VAT), but it does not carry the absolute guarantee of the certificate.

 The difference is that the certificate is signed by the Director of the Register, who thereby accepts responsibility for the information given. The Nota Simple shows the latest recorded details of any charges. There are many forms of charges – in Spain debts, charges or court orders are registered against the property rather than the person: these include hipotecas (mortgages), censos (ground rent or leasehold payments), usufructos (interests in the property), limitaciones (restrictions on use), multas (fines), cláusulas resolutorias (determinations, i.e. decisions about the future of the property), or embargos (court orders for distraint or seizure). It may be that there are some unpaid taxes not yet recorded at the Registro, so your lawyer should also check with the relevant authorities, including Hacienda (Ministry of Finance), the Ayuntamiento (Town Hall), and the Recaudación Provincial (Provincial Rates Office), that these have been paid.

 The notary must obtain a new nota simple on the day that the documents are signed, when the contract is effected, in order to confirm that the ownership and charge details have not changed since the last enquiry. Whilst you are waiting for this proof from the Register, many vendors will be able to show you an authorised copy of the Escritura Publica, from when they bought the property. This is the title deed of the property, which will give the exact details of the owner, an approximate description of the property (but not the definitive physical description which is held by the Catastro (more on the Catastro below)), and will show as marginal notes whether any charges exist. But remember - an escritura is only a historical record and so is not up to date. In addition, if the current owner chose to register the property, this will be shown by the official Registry stamp. It is not obligatory in Spain to register the property: before registering it is necessary to pay the transaction taxes which are stated on the last page of the escritura (6% transfer tax (Impuesto sobre Transmisiones Patrimoniales), or 7% VAT (IVA) and 0.5% stamp duty (Impuesto sobre Actos Juridicos)), so in a few isolated cases some people choose not to register.

 Not registering runs the risk that other charges can be registered which rank ahead of your ownership, so we strongly advise to ask the notary to register immediately by fax. Both registration and payment of taxes has to be in the Comunidad Autónoma where the property is situated. Taxes have to be paid at the Oficina Liquidadora de Impuestos, and the receipts sent with the escritura to the Registro. If the Notary also has a “gestor” (financial representative), he will be able to arrange this for you. If you are obtaining a mortgage from UK Mortgages Abroad 2004 S.L., we will arrange the payment of taxes and registration for you, and we will tell you how much you will need to pay these costs. It is most important that the notary files the new inscription at the Property Register immediately by fax, as any unpaid debts for which a court has imposed an embargo (seizure order) can be registered against the property at any time. If the embargo is registered after your last check, and before your inscription is registered, the creditor will have a claim to your property which ranks ahead of yours and which will enable him to force the sale of your property to repay the debt.

There have been cases where a vendor has arrived at the notary’s office to sign, where the property is in joint names, but the spouse has died. They have presented the will, in which the property was left to them, claiming that this is enough. Not so! If one owner has died (and this unfortunately is often the case when a foreigner sells a property) and has willed his/her half to his/her spouse, this is a transfer of ownership which must also be registered by the notary before it can be sold. So it is important to check that the exact ownership details recorded in the Registro are correct, and match up with the people who are selling.

2. The receipts for the local annual property tax, the Impuesto sobre Bienes Inmuebles (IBI). If unpaid, this tax is attached to the property so the new owner will become liable (as well as for fines for late payment!). You should ask to see the receipt for the last year, the period for which liability for unpaid taxes can be transferred to the new owner. If the current vendor cannot produce this, you must ensure that your lawyer obtains confirmation from the Recaudación Provincial (the Provincial Rates Office) that payment of IBI on the property is up to date. The IBI receipt will also show the property’s Referencia Catastral (fiscal reference number) and also the valor catastral (value for tax purposes – similar to the old rateable value in the UK). Since 1997 all property transactions must quote the Referencia Catastral. if you are buying a new property, it is your responsibility to ensure that the property is registered for tax. Make sure that your developer has made a declaración de obra nueva (declaration of new building), and that your escritura covers not only the land but the building as well.

3. The Certificación Catastral, which contains the only legally valid description of the
property: the Catastro is a register of assessed property values for tax purposes. It
contains a description of the exact location and physical characteristics of the property and a plan or aerial photo. Whereas the Registro de la Propiedad is concerned with ownership, the Catastro is concerned with the property. It is possible that a description in the Registro de la Propiedad can be inaccurate, and in the case of any dispute, it is the Catastro which is normally correct. When you obtain the certificate it will give you an exact description of the property. You should always compare this with the description in the Property Register certificate and the escritura to ensure that there is no difference. If there is any problem you should take legal advice.
The Catastro records the valor catastral of the property. This is not the market value, but the assessed value for tax purposes (rather like the old rateable value in the UK). The two registers have never been linked, and as a first step to rectifying this situation all property transactions from 1997 have had to quote the referencia catastral. The intention is that the values will gradually be updated to reflect market values. There are still many properties where the valor catastral is well below the market value, where the owner pays low taxes. But you should not rely on “inheriting” this advantage - if the valor catastral is updated, the taxes will increase.

4. If you are buying in an urbanization, the Plan Parcial: (the plan of plots of land(parcelas) for each urbanization registered with the local Urbanismo del Ayuntamiento (the town planning department of the town hall)). This assures you that the urbanization itself is registered and legal. Also make sure your lawyer makes appropriate enquiries at the Urbanismo and does a search of local town planning maps to find out whether any major new developments are planned that could affect your property.

5. Confirmation that the property was built in conformity with the Ley de Costas (Coastal Law) of 1988: this empowered the authorities to restrict building within 100 metres of the beach and establishes a zona de influencia (zone of influence) up to 1km inland. It is essential to ensure that any new properties built since 1988 comply with any restrictions issued under this Coastal Law.

6. If the property was built since 1988 on the coast, or in the last 10 years elsewhere, it
is also sensible to see proof that a building licence was obtained and that certificates of the termination of the building (certificado de fin de obra) and a licence of first ocupation (licencia de primer occupación) have been issued. If the vendor is unable to show you these, your lawyer can obtain them from the local Town Hall Ayuntamiento). If the building does not have the necessary approval and licences, you may run into problems when it comes to registering the sale, and - even worse – the authorities could enforce the ultimate sanction of having the property demolished.

7. Receipts for payment of the fees to the Community of Property Owners, as well as
the Statutes and the minutes of the last meeting. In Spain, wherever you buy almost any kind of property in a development which has communal areas, it is a legal requirement that you automatically belong to a Comunidad de Propietarios (Community of Property Owners), which is responsible for the “legal framework of ownership of the property, of its individual parts and common areas, and the reciprocal rights and obligations of the community members”. Only if you buy a house in a town street (i.e. not on a development), or a cortijo (farmhouse), or a finca rural (land in the country) will you not have to join such a Community. This requirement is established by the Horizontal Property Law of 1960 as amended by the Law 8/1999 (although it is as much vertical as horizontal as it also applies to apartment blocks). The Community will be responsible for roads & lighting on the development, swimming pools, gardens, lifts, and general management and maintenance of common areas. In more remote areas it may also deal with water and power supplies and sewage. You will be bound automatically by the Statutes and the decisions taken at previous seetings. So it may be important to find out if the Statutes prohibit pets for example, or if a decision has just been taken to install a swimming pool at a cost to be borne equally by the members. You will also want to know how much membership of the Community costs – this can run into thousands of pounds for some urbanizations. You should ask the president of the Community for a certificate of its state of payments, because, as with the IBI, if the vendor has not paid his dues, the buyer becomes liable for these debts for the previous year, and for the current year up to the date of purchase.

8. Receipts for all other utilities, such as electricity, water, telephone and refuse collection: unlike the IBI and the dues to the Community of Owners, in principle these remain personal debts of the vendor. However, non-payment of these could lead to practical difficulties, and could be a sign of other problems.

 9. Receipts for the payment of the special 3% annual tax, if the vendor owns the 11 property through an offshore company.

6. The Contrato de Compraventa (Contract for Purchase and Sale)

 If you and your lawyer are both happy with the pre-contract enquiries, you can proceed with the contrato de compraventa (the contract for purchase and sale). The contrato de commpraventa is a legally binding private contract which sets out the parties to it, the description of the property and what is included and excluded, and the conditions of the transaction – price, deposit, balance and how this is to be paid, date of the sale, warranties, who pays the costs and taxes etc. Make sure that the deposit is paid under a specific agreement called an arras. Under an arras agreement, either party may withdraw: the buyer will lose his deposit and the vendor will have to return double the amount deposited. If such an arras agreement is not entered into, then the only recourse if either party fails to complete is to sue the other for breach of contract. If a buyer does not enter into an arras agreement and then pulls out of the contract, he may be sued for the full contract value plus damages. It is also possible to include other clauses to deal with disputes. The private contract is very useful as it largely eliminates the problem experienced in the UK of “gazumping”, especially if there is some time between the signing of this contract and the eventual completion date. But if the buyer has the full purchase monies available, is sure there are no legal problems, and both parties wish to complete immediately, it is possible to go directly to a notary and ask him to make an escritura de compraventa, which is the public document that is registered at the property Register, to recognise the owner’s legal rights of ownership. Remember never to pay the deposit directly to the vendor – make sure it goes into a blocked “Bonded Client Account” with either the estate agent or the lawyer. This contract will almost certainly have been prepared in advance by the estate agent, and will probably contain clauses which are more favourable to the vendor than the buyer. So make sure you go through this carefully with your lawyer and that he negotiates any unacceptable or unfavourable points with the agent.
If the vendor or his estate agent has drawn up the contract, it will nowadays probably provide that the buyer is responsible for paying all the costs and taxes, including those for which the vendor is legally responsible, such as the Impuesto sobre el Incremento del valor de los Terrenos (IVT), commonly known as plusvalía after its original name the arbitrio municipal de plusvalía (more on plusvalía in the “Costs” section below). Such a clause is perfectly legal – it is up to both parties to agree in the contract on who pays what, and Spanish law does not prescribe who must pay which tax. Traditionally it was the seller who paid the plusvalía and the notary’s fees, and the buyer who paid the transfer tax and the registry fee – but this is generally no longer the case. But this situation may not be as bad as it at first seems: in the past, some non-resident vendors left the country without paying. In such cases the debt was attached to the property and a seizure order issued so the buyer ended up paying anyway, or risked losing the property. Also, in the knowledge that he will probably have to pay theses costs, the buyer can make allowance for them in the offer he makes for the property. This is certainly a point to be discussed with your lawyer. The contrato de compraventa is a private contract effecting a valid sale of the property to the buyer, which is valid between the parties to it, and obliges them to fulfil the terms contained in it. However as a private contract it cannot be inscribed in the Property Register and may not be accepted by third parties as proof of ownership of the property. As well as protecting the new owner against the registration of prior charges, an inscription in the Register is advisable to prove ownership and conformity with the rules (such as payment of the transaction taxes), and for
example, without a Nota Simple (an extract of the Register entry) it is not possible to obtain a mortgage. To register the property it is necessary to convert this private contract into a public deed: this is done by the Escritura Notarial (notarial act) usually called the escritura de compraventa (deed of conveyance) (more on the escritura de compraventa in the next section), which - to be valid - must be signed by both the vendor and the buyer in the presence of the Spanish notary when it becomes an escritura publica (public deed). The contrato de compraventa should contain the following clauses (amongst others):

1. The parties to the contract, date of sale, price, deposit and conditions of payment –
such as currency, method (e.g. bankers draft) and country of delivery. The date will be the date when the escritura is to be signed at the Notary’s office, when the final balance is to be paid, and when the buyer will obtain vacant possession. Note that all parties will have to attend the notary’s office to sign the escritura, so this should be borne in mind when agreeing the date. If a person cannot be present he must
arrange a poder (power of attorney) to appoint someone else to represent him. You should already have checked at the “pre-contract stage” that all the parties who are the registered owners are available to attend the notary’s office.

2. The arras agreement: that if the vendor does not honour the contract on the date stated, the penalty is to be double the amount of the deposit paid by the buyer; and that if the balance outstanding is not paid by the buyer by that date, the buyer will
lose his deposit. In this case, the buyer will have no charge against the property, and the vendor will be free to sell the property to another buyer. So it is important to ensure that you have the funds available for the agreed date, and if you are obtaining a mortgage, that your lender is aware of and accepts this date. (If the penalty is not honoured, then the aggrieved party can sue for damages, and ultimately the court can order the sale of the property on the original terms.)

3. Disclosure of all the charges on the property, together with a provision that the vendor remains responsible for, and will pay, all charges up to the date of the sale.
Not only should you have already seen receipts for all these charges during the “precontract” stage, but – especially if there is a big delay before the sale completes – you should insist that this clause also provides that the vendor will produce final receipts at the notary’s office to prove all payments are up-to-date, so the sale is free of all charges. The law now requires that the vendor must present the receipt for payment of the IBI for the preceding year (for more information on the IBI see point 3 of section 5 above) to the notary, in order to allow the transaction to be notarised and registered. This is to enable the Registro de la Propiedad to be brought into line with the Catastro, and is not to prove that payment of this tax is up to date. It is still possible that earlier years remain unpaid. As was mentioned earlier, you should have either seen receipts for the preceding year, or your lawyer should have obtained confirmation from the Recaudación Provincial (Local Rates Office) that the IBI is fully paid.

4. Disclosure of whether the vendor is resident in Spain or not, with his/her numero de identificación fiscal (NIF) (fiscal number) if resident, and numero de identificación extranjero (NIE) if non-resident. If the vendor is non-resident and bought the property on or after 1st January 1987, or if the vendor is a company and it bought the property on or after 1st January 1977, Spanish law requires that the buyer must withhold and pay to the tax authorities 5% of the declared value in the escritura de compraventa. This is to ensure that the non resident or company pays all the appropriate taxes. If the vendor is non-resident or a company, and has not owned the property for the requisite period, this clause should therefore also contain an acknowledgement that 5% of the value will be withheld by the buyer and deposited with Hacienda (Ministry of Finance) in the vendor’s name. (Form 211 is used for this purpose).

5. A warranty that all necessary building, completion and occupation licences have
been issued (for more on these licences, see point 6 of section 5 on “Pre-Contract Enquiries" above). The newer the property, the more necessary this declaration.

7. The Escritura de Compraventa, the Copia Simple and the Escritura Publica

As mentioned above, the contrato de compraventa is a private contract, and as such it cannot be inscribed in the Property Register and may not be accepted by third parties as proof of ownership of the property. To register the property it is necessary to convert this private contract into a public deed: this is done by the Escritura Notarial (notarial act), whereby the notary confirms that the transaction is in conformity with the relevant legal requirements and that the necessary transaction
taxes have been paid, and witnesses the signing of the documents by both the vendor and purchaser. The contrato de compraventa is thereby converted into an escritura de compraventa (deed of conveyance) which can then be inscribed in the Property Registry, when it becomes an escritura publica, providing official proof of ownership to all third parties. All parties to the contract must be present to sign the escritura at the notary’s office, including a representative of the bank if the purchaser is arranging a mortgage. If a person cannot be there, he must arrange a poder (power of attorney) to allow someone else to represent him. As mentioned above, the vendors are all the people registered as owners in the Registro. If there have been any changes to the ownership, such as a recent death of one of the owners, this
change must be notarised and registered first, before the property can be sold.
The notary is a public official: his role is to ensure that the relevant Spanish legislation has been complied with, to advise the parties of their tax obligations, to certify that the contract has been signed by the specified parties, and (very important) to certify that all the money has been paid. He does not in any way advise the parties to the transaction, nor does he check that statements made in the contract are true. It is the lawyer who must be instructed to do this. The copia simple is, as its name suggests, a simple copy of the escritura. It is the document the buyer needs in order to pay the plusvalía and to transfer or register for contribuciones (these are payments towards the local rates, the IBI), electricity, water, telephone or other services, hange the address on his bank account etc. The notary will give you a copia simple once the escritura has been signed.
If you are buying with a mortgage from UK Mortgages Abroad 2004 S.L., we have a service “Servicio de Alta de Suministros” to help you deal with all the utilities – water, electricity, telephone and gas. For a nominal payment and by completing one simple application form, Grupo Duero will contact all the utility companies on your behalf and arrange the services you require. There is also a 24 hour helpline and an e-mail contact address where you can receive personalised advice.
If the property is to be registered, the notary will send the primera copia (first copy) of the escritura to the Registro together with the receipts for the taxes paid. Make sure the notary does this by fax the same day. The Registro will then enter it immediately into the daily journal in order to prevent any other charges being registered ahead of yours. Once the primera copia has been fully registered it will be allocated its registration number, stamped and returned to the notary,

8. Paying for the Purchase

We have already said that the deposit should only be paid to the estate agent or a lawyer, and then only into a Bonded Client’s Account, so that the funds can only be released to the vendor once the documents have been signed at the notary. The best way of paying the balance is by bankers draft. If the vendor is a resident in Spain, this can be in euro and can be handed over at the notary’s office when the documents are signed, providing you are happy that all charges have been paid and warranties in the contract have been fulfilled. If the vendor is non-resident, and if it has been agreed that payment is to be in a foreign currency, it is a Spanish legal requirement that payment must be made outside Spain. In this case you should deposit the bankers draft (payable to the vendor) with the estate agent or a lawyer, so that it can be handed over once the escritura has been notarised. Although payment has not technically been made outside Spain, the notary is told that payment has already been made (for example, in London if both parties are English): as he does not see the payment, he assumes that what both parties have told him is correct and he does not ask any further questions. If the buyer is non-resident, and the payment is to be in euro, it is a legal requirement that a bank certificate be provided to prove that the funds have been brought into the country in foreign currency and converted into euro. The notary will require to see this certificate. The tax authorities require this in part to prove that the non-resident has not earned the funds on the black-market in Spain, and in part to prove that they are not the result of money laundering. In this case, if you are paying by Banker’s Draft, you will need to obtain this certificate from your bank in the UK (the issuing bank). It will be easier in this situation to transfer your deposit in advance by SWIFT from your bank in the UK to your account in Spain. Your Spanish bank can then issue the necessary certificate. If you use your account with UK Mortgages Abroad 2004 S.L., and if you are getting your mortgage from us, we will issue the certificate for you automatically. Otherwise, you must remember to ask your Spanish bank for it. Without this certificate, you will not be able to complete the transaction at the notary. Remember also that if the vendor is non-resident, you have to deduct 5% from the purchase price, and deposit this with Hacienda on account of the vendor’s 35% capital gains tax liability. This is done using Form 211.

9. Costs of Purchase and Transaction Taxes

You need to reckon that in total your costs of buying the property will be up to around 10% of the purchase price – this can only be a rough guide as some of the costs – such as the IVT (see below) - are not related to the value of the property and so could vary widely. If you are obtaining a mortgage, you can of course include these costs in the mortgage amount you request, providing this remains within the maximum percentage available against the property value and on your income. This estimate of 10% includes:
The transfer tax, Impuesto sobre Transmisiones Patrimoniales, is 6% of the value declared in the contract. In some communities, the Impuesto de Transmisiones Patrimoniales has been If it is a new property, or a resale property previously owned by a company, you will pay VAT (IVA) at 7% (instead of the ITP). In addition, where VAT is involved, there is an Impuesto sobre Actos Jurídicos Documentados (stamp duty) of 0.5%. If you buy a garage separately from the house, subject to a separate escritura, this will be regarded as a completely commercial transaction, and will be subject to VAT at the full rate of 16%. This rate also applies if you buy a business.

Your lawyer’s fees, which are likely to be around 1% of the purchase price for the work he does, plus the fees he has had to pay out, for example, for the Nota Simple, Certificación Registral and the Certificación Catastral.
The notary, registration and handling (gestoría) fees, which should together amount to less than 0.5% of the purchase price. The notary charges according to a fixed scale depending on the size of the property and its price, and is likely to be between £100 and £500. The fee for the registration will be around half of the notary’s fee, and the handling fees are around EUR 90 (£56). On a property valued at EUR 200,000 (around £125,000) the notary’s fee would be around EUR 312 (£200), the registration fee around EUR 160 (£100), and the handling fee around EUR 90 (£56) - in this case the three together amount to 0.28% of the property value.
If you were obtaining a mortgage, there would be the same notary and registry fees to pay for registering the mortgage deed, although the amounts will be less, as the mortgage will be less than the value of the property. In addition, Stamp Duty is charged on mortgage deeds of 0.9%. There would also be a valuation fee, which is usually around 0.8% of the purchase price, and there is usually a 1% application fee charged by the lender.

 There is also the Impuesto sobre el Incremento del Valor de los Terrenos (IVT) – commonly known as plusvalía after its original name the arbitrio municipal de plusvalía - a municipal value added tax, which should be paid by the vendor. But as mentioned above, the contract may often specify that this tax should be paid by the buyer. The plusvalía is based on the valor catastral of the land (i.e. not on the value of the building), and is levied on the increase in this value since the last sale. The tax is levied at a rate between 10% and 40% depending on the area and the length of time since the last sale. So an apartment in a modern urbanization with little ground last sold a couple of years ago will pay far less plus valía than a finca rural with large grounds which was last sold 20 years ago and where the land has just been re-zoned for urban development. Your lawyer will be able to find out exactly how much the plus valía will be from the local municipal tax office, which keeps records of land values. (This should not be confused with the capital gains tax which is payable by the vendor and from 2000 is either 20% for residents (exempt if over 65) or 35% for non-residents (more on capital gains tax in the “Taxes” section below)).

10. Annual Property Taxes and Capital Gains Tax

So, if you buy a property in Spain, what taxes are you letting yourself in for (after the actual transaction taxes mentioned in section 9 above)? [In this section we do not cover income tax itself (Impuesto sobre la Renta de las personas Fisicas), as this is too complicated to include in a guide about property related matters]. As you read about these taxes, you will see why until recently it was a legal requirement that a non-resident must have a representante fiscal (fiscal representative) in Spain to manage their tax affairs, and why, when the legal requirement was removed, most non-residents (as well as many These taxes may vary depending on whether the payer is resident or non-resident. For tax purposes, residence is normally determined by whether the person is actually resident in Spain for 183 days in the tax year. There can however be exceptions to this general rule. But what is a reasonable certainty is that a person who spends less than 183 days during a tax year in Spain, and does not have residencia, will not be regarded as resident, and will therefore only pay tax to the Spanish authorities on their assets and income in Spain. Such a person would be liable to UK tax on their world-wide assets and income, and would generally obtain a set-off under the UK’s Double Tax Treaty with Spain against this for those taxes paid in Spain. For a person who becomes resident in Spain, either officially or by spending more than 183 days there, the position is generally reversed: tax is due to the Spanish authorities on their world-wide assets and income, with a set-off for any tax paid in the UK. This is however a very complex area, and you should obtain specialist advice on your tax status and its implications.

1. Impuesto sobre Bienes Inmuebles – IBI (sometimes known as contribuciones) is the annual real estate tax - the equivalent of local rates. This is paid by residents and non residents alike. It is based on the valor catastral, which is revised every 10 years, and updated annually in line with inflation. It is paid to the local authority for services such as refuse collection, hospitals, police, schools etc. It is a municipal tax and so can vary considerably from one area to another for the same type of property (just as council tax varies in the UK), but typically it is 0.75% of the valor catastral. It would typically be around £400 on a property worth around £50,000, to over EUR 1,800 (£1,000) for a large villa in a town such as Marbella.

2. Impuesto sobre el Patrimonio (Wealth Tax). This is paid by both residents and non-residents – but it affects them differently: residents have an exemption of EUR 108,000 (around £67,500) each, so a property owned jointly by husband and wife is free of patrimonio up to EUR 216,000 (£135,000). Non-residents do not benefit from this exemption. Mortgages or other debts registered against the property can be deducted from their value, whether resident or nonresident. The Régimen Económico: Under Spanish law, when residents marry they have to make a decision about their regimen económico (financial status). Note that this only applies to married couples. This status can be changed – although it is a complex process - by making a notarial declaration (escritura), certifying this at the Civil Registry at the town hall, paying the fees to Hacienda, then sending it to the property register. The status affects tax, the situation in the case of divorce, and inheritance. Married couples have to decide whether, in their marriage, for tax purposes, their assets (including not only property, but all other forms of wealth – bank accounts, investments, cars, ownership of businesses, art collections, antiques, jewellery) will be held jointly (bienes conjuntos or gananciales) or separately (separación de bienes). Normally, the regimen económico chosen by Spanish people is joint ownership (gananciales). This means that everything
is owned jointly, regardless of who actually paid for it. It is however possible to choose separación de bienes, which then means that each person is treated separately as an individual and is regarded as owning 100% whatever they personally buy (i.e. the tax treatment is more or less as though they were not married, in order to put each person on an equal basis). The only exception to this is that in the case of divorce, and with regard only to the main residence, a judge is unlikely to grant possession to one party, if the other party is a dependent. The advice we have received from a Spanish notary is that the Spanish rules regarding the régimen económico will be applied to residents, but not to non-residents, where in the case of a dispute, the Spanish judge would apply UK law (remember that the rules only apply to married couples). In general, where a married couple are buying a property jointly, and both are contributing, the purchase and mortgage should be in joint names (as “bienes gananciales”). If the property and mortgage are to be in the sole name of one purchaser (“separación de bienes”), then that purchaser must prove to the notary that the money used for the purchase is his/her own (e.g. from an inheritance or an insurance claim – earned income is deemed to be joint). In addition, the other married partner must sign a declaration that they accept the régimen económico of
“separación de bienes”. This declaration must also be notarised. So, patrimonio will be applied in accordance with the régimen económico for residents. Originally, the tax was introduced as a special tax, called the Impuesto Extraordinario sobre el Patrimonio, in 1978 especially to encourage Spanish people to declare wealth that was often hidden in undeclared or under-valued property. The tax rate was set at a very low 0.2% up to EUR 167,081 (around £105,000), the intention being that anyone who did not declare assets in 1978 would then be subject to fines, and the undeclared value or under-valuation would be subject to income tax (at much higher rates up to 48%) in the year in which it was discovered. The “extraordinary” tax worked much as intended, but the authorities found it a good way of keeping track of people’s assets, and of generating much needed revenue in the run up to EMU, and so it has never been discontinued, and is now known simply as the Impuesto sobre el Patrimonio or patrimonio for short. The tax rates are 0.2% up to EUR 167,000 (around £105,000); 0.3% from EUR 167,000 to around EUR 335,000; 0.5% from EUR 335,000 to EUR 668,500; increasing to a top rate of 2.5% on properties worth more than EUR 668,500. The tax is based on the higher of the market value or the valor catastral. So a resident couple with bienes conjuntos owning a property jointly worth EUR 720,000 (around £450,000), with a mortgage of EUR 120,000, would each pay tax on EUR 192,000 (half of the 720 each = 360, less half of the mortgage each (60) = 300, less 108 exempt each = 192). The tax rate is 0.2% on the first EUR 167,000 = EUR 334 plus 0.3% on the next EUR 25,200 = EUR 80, making EUR 414 in total each. In this example, the two together amount to around 0.1% of the total property value. In a simpler example of one non-resident owning a property worth EUR 150,000 with no mortgage, the tax would simply be 0.2%. However, on 1st January 1997 the patrimonio was handed over from the central government to the autonomous regions, who can now make whatever changes to the tax they wish. Therefore differences can increasingly be expected in the exemptions and rates of tax in the different regions
of Spain.

3. Impuesto sobre la Renta (Property Owners’ Imputed Income Tax). This tax is paid by residents on a second property and non-residents on any property owned in Spain, other than land in the country, urban plots and property used commercially. It imputes 2% of the valor catastral to property owners as a notional income - this is reduced to 1.1% if the valor catastral has been revised since 1994. For residents, this notional income is added to their normal income and taxed at their particular income tax rates. Non-residents are taxed at a flat rate of 25%. For nonresidents therefore, this tax is equivalent to 0.5% of the valor catastral, (reduced to 0.275% if the valor catastral has been revised since 1994). Again, the income would be taxed according to the regimen económico.

4. The fees charged by the Comunidad de Propietarios can also be added to the list, as they are a legal requirement. In general, these charges may range from as little as EUR 300 on a flat on a small development where the local authority provides more services, to as much as EUR 3,000 on a large villa on a large development where the Comunidad takes responsibility for more services, communal swimming pool and leisure facilities etc. As a very rough guideline, these charges may range between around 0.5% and 1% of the value. From the tax point of view, these charges are also relevant if the property is rented, because – for residents only - they can be deducted from the taxable income. A non-resident is liable So how do you pay these taxes? The best way of dealing with the IBI is to set up a domiciliación (direct debit) from your bank. You can include any other municipal charges with this. You obtain a form from your bank which authorises them to pay the bill, and you lodge this with your Ayuntamiento, to tell them to send the bill to your bank. You can pay the Comunidad de Propietarios in the same way. For the wealth tax and imputed income tax, if you are a non-resident owner of one property only, the procedure is now considerably easier. You have to complete a Form 214 where you can declare both wealth tax and imputed income tax as well as income tax for non-residents. You can file this form at the local Agencia Tributaria (Tax Office) at any time during the year. But if the property is owned jointly, both partners will have to file a form. In order to file the form, you need to take with you the IBI receipt (as this shows the referencia catastral, to enable the office to check the catastral value), and the escritura (which shows the market value). If you are a resident, or a non-resident with more than one property, you cannot use the simplified Form 214 procedure. In this case, you (and your partner if the property is owned jointly) need to file a Form 714 for wealth tax and a Form 210 for the imputed income tax. These can only be filed between May 1st and June 20th - hence the need for a fiscal representative.

 5. If you let out your property, you are subject to Impuesto sobre la Renta (Spanish income tax) on the net earnings. For residents, this income is added to other income and taxed normally. Non-residents should pay a retención (withholding tax) of 25% to Hacienda on all income in Spain. This is to be declared on Form 210, normally within 30 days of receiving the income, but arrangements can be made to file quarterly. As a non-resident, this withholding tax accounts for your tax liability, and there are no further allowances or calculations. If the tenant is a Spanish legal entity (i.e. a company or organisation rather than a Spanish individual), that entity is required to pay the withholding tax (this removes the need for a non-resident owner to do this).

6. You may have heard about buying through an offshore company in order to avoid the transfer taxes - which, as we have seen, are normally either 6% or 7.5% of the purchase price - and inheritance tax. Since 1996 this option is much less attractive. In the Law concerning the Taxation of Non Residents’ Income, there is now a special charge of 3% of the valor catastral on properties owned by non-resident companies. In addition, the law requires that – both for residents and non-residents – any sale of shares in such a company will be taxed in the same way as if it were the sale of the house itself, if either the assets of the company are at least 50% in property; or if as a result of the sale, the purchaser of the shares acquires control of the company. Although this was the normal method of house purchase in the 1980’s, there are now only around 12,000 offshore companies left in Gibraltar, as individuals transfer the ownership back into their own names and take residence in Spain. If a property is to be owned by a group of friends or relations, and especially if the members of the group may change fairly frequently, it may still be advantageous to own through a company, as this could avoid a lot of administration and costs when the ownership changes. There are now two possibilities for such a company which obtain an exemption from the special 3% tax: (1) if the company and its real owners are fiscal residents of “normal” countries which have taxation treaties with Spain, and if the company can provide the Spanish tax authorities with a certificate that it has paid its taxes in that country; (2) if the company is registered in Spain itself, where it would pay tax at company rates on its assets and on its rental value. There are allowable expenses, and there is a low tax rate for small companies in Spain, so this could also be an advantageous route, especially for family trusts. However, if you use such a structure, it will be more difficult (if not impossible) to obtain a mortgage.

7. And finally, if or when you come to sell the property, there is the Impuesto sobre elIncremento Patrimonial (capital gains tax - CGT). This is now a substantial cost for nonresidents, and so is worth taking into account when you purchase the property. The system of capital gains tax was changed from 1st January 1997, and the old annual allowance of 11.11% and the exemption if the property had been owned for 10 years or more were removed at that date.
Since 1997 non-residents are subject to a flat rate of 35% CGT on profits from the sale of their Spanish home. Residents and non-residents both have two allowances they can claim: (1) there is an annual allowance available to adjust the original purchase price to allow for inflation – so for example, if you bought the property in 1996 and sold it in 2000 you are allowed to inflate the purchase price by this coeficiente de actualización (inflation factor) – which in this case is 1.08; and (2) expenses of purchase, including transfer tax or VAT, plusvalía, and the notary, lawyer, registration and other fees. Residents have three other allowances not available to non-residents, which mean that they can avoid CGT, and at worst will only pay 20%: (1) most importantly, if a resident is aged over 65, he is exempt from CGT completely; (2) the proceeds of the sale of a principal residence are also exempt from tax if they are used to purchase another main home; and (3) the maximum rate of tax is 20% if the gain has been generated over more than 2 years. A resident has his capital gain added to his income and taxed at his marginal rate. Normally, this starts at 15% and rises to 40% - but tax on the gain (if earned over more than 2 years) is limited to a maximum of 20%. Also, as mentioned above, if the vendor is non-resident, the buyer is required to deduct a 5% withholding tax from the amount paid, and deposit this with Hacienda. Generally, this is more orless a similar amount to the amount of the vendor’s 35% capital gains tax liability, and so it either forces the non-resident vendor to declare for CGT, in order to obtain any repayment due, or the retention paid is regarded as covering his capital gains tax liability. In addition, it is worth noting that a resident aged 65 or older who contracts with a company to sell his principal residence in exchange for the lifetime right to inhabit the dwelling, along with a monthly payment, will not be taxed on any capital gain involved. This makes such “home reversion schemes”, known as usufructos vitalicios, relatively more attractive. The usufructo vitalicio is also used quite legitimately, to avoid one round of inheritance tax. Parents will purchase their property in the names of their children, whilst reserving for themselves the right to inhabit the property for as long as they live. When they die, the children simply take full possession of the property, with no inheritance tax due as it is already in their names. However, again, if you create a usufructo vitalicio, it will be more difficult to obtain a mortgage. Generally speaking, if you are still resident for tax purposes in the UK, and domiciled in the UK (more on this in Section 13 on Inheritance below), you will be liable for UK capital gains tax on the sale of a second home in Spain (but not if this is your main residence under the UK rules). There is a double tax treaty between the UK and Spain which means that any tax paid in Spain will be available to set off against any UK tax liability – so you will not pay twice. However, this is a very specialised and complicated area, requiring specialist advice. For information about UK tax for non-residents, the Inland Revenue has a helpline: + 44 151 472 6196. They also have a booklet order-line on + 44 845 900 0404. Their website is at: www.inlandrevenue.gov.uk. Booklets IR20 on taxation for non-residents, and CGT1 on capital gains aspects are likely to be the most relevant.

11. Buying a property in the Country, and Obtaining Planning Permission

 If you are buying land or a property in the country, such as a farmhouse (finca), it is essential to find out if it is in an area where building is allowed (in which case it is called a “finca urbana”, or – if land – “suelo urbano” ) or where it is not allowed (“finca rustica” or “suelo rustico”). This classification will affect the value, and it will also affect how much of a mortgage you can raise. Land in Spain is zoned for development, which can restrict your options. There are green zones and rural areas where development will not be allowed. There are also rules which limit building size in relation to plot size. You should therefore check with the local Ayuntamiento that you can get permiso de obra (planning permission) to build on the land you want to buy, or to renovate and extend or alter the property, and if so, what the limits would be. If you are buying land or property which is classified as “urbano”, it is possible to mortgage this on the normal terms and conditions. If you are buying land or property where building is not allowed – “rustico” – the maximum mortgage amount is 50% of the value over 12 years. In fact, this same situation applies to all land and properties in Spain: if you are buying land anywhere with the intention of building your own property, this is only possible where the land has been zoned for building (“suelo urbano”). More information on this is given in Section 13. If you are buying on a new development (“urbanización”), it is equally important to check that the urbanización itself is in an area zoned for building, and that the necessary planning permission has been given. If a builder has failed to obtain the necessary planning permission, the authorities have the power to order the complete demolition of the development. More information on this is given in the next section. If you are buying a property in the country to restore or redevelop, there can be other problems. It is often the case that escritura do not exist for such properties, and you need to establish your right to the property through a process known as “expediente de dominio”. This is complex, involving publication of your claim in the Boletin Oficial del Estado (the Official Gazette). Then you need to ensure that the records of the Registro de la Propiedad and the Catastro agree, and that these are in accordance with what local custom holds to be the property boundaries. You are only allowed to build on a certain percentage of the land area. You need to check for vailability of utilities – especially water and electricity. You need to check for servidumbres de paso (rights of way) as these cannot be blocked. For all these you need the services of your lawyer.

12. Buying a Newly Built Property from a Builder or Developer

The previous sections of the Guide have generally assumed that you are buying a “resale” property – one that already exists and is occupied by the owner. Now we consider the main differences if you are buying from a builder or developer; and in the next section, if you are having your own property built. The main difference here is that the builder retains ownership until the property is completed. It is only when the necessary certificates of building completion (fin de obra) and of first occupation (primer ocupación) have been issued, that the escritura for the sale can be finalised and the sale 21 There will be a contrato de compraventa, but this will be a “promissory contract” for the purchase in the future, when the building is completed. This contract will normally provide for advance payments (pagos adelantados). This is acceptable, so long as the contract also provides the guarantee (required by Law 57/68) for the return of any money paid, which is normally through a bank guarantee backed by a bond which the builder has deposited (aval bancario), or an insurance policy (garantia de seguro). Your lawyer should check that the bond or policy is in force, and that it covers all foreseeable problems. In the event of non-completion, the buyer is entitled under Spanish consumer protection law (Law 57/68 reinforced by Decree 515/89) to the return of all money paid during construction plus interest at 6%. It is a legal requirement that builders / developers include such a guarantee (certificado de garantia) in their contracts which specifically provides for the return of all money paid plus interest. Failure to do so is a criminal offence. The builder may not charge the buyer for providing this guarantee. The big difference compared to the system in the UK is that, as you do not own the property, you cannot arrange a mortgage to finance these advance payments. At mortgages-in-spain we can however “pre-approve” your application for when the property is completed and sold, and issue you with a formal letter of intent (subject to completion and valuation), which should enable you to obtain bridging finance with your own bank. Normally, builders in Spain obtain mortgage finance for the project from their bank. When the property sale is finalised, and the project split up into the individual parcelas, the buyer has the right to “subrogate” (i.e. take the place of) the builder in the mortgage for his particular plot. The buyer will have to complete an application similar to that for a new mortgage, and go through a similar approval process. If the buyer requires a larger loan than that available by subrogación (typically around 60%), this would be treated by the lender as a separate second mortgage. Traditionally the advantage of this system was that the mortgage finance by subrogación was relatively automatic – a big advantage in the Spanish system, when 20 years ago for example, there was only state-owned Banco Hipotecario which granted mortgages. However, now that the mortgage market is much more open and competitive, and mortgage offers can be obtained anywhere (at least if you are a Spanish citizen with your wages paid into your bank account) there are fewer advantages of subrogación. The main advantages are associated with the costs: generally there will be no need for a valuation, the stamp duty may be avoided (as it is not a new mortgage deed), and the cost of the notary and the property registry will be around 50% of that for a new mortgage.
But, some lenders may not accept subrogación if the buyer is non-resident, and some may charge higher rates. As a non-resident, mortgages-in-spain offers you a range of competitive mortgage products up to 80% of the property value, with on-line applications, telephone helpline and documentation in English, so again you should not accept subrogación at least until you have spoken with us. Because you are buying from a developer, it is even more important to carry out the relevant “precontract” checks (for full details refer to section 5 above); in particular, you still need to:
1. Prove that the developer does own the land – you need to see his escritura.
2. Check that there are no loans outstanding – you need to obtain a nota simple.
3. Ensure that the developer has paid his IBI – you need to see receipts.
4. Obtain a certificación catastral and check the plan parcial to ensure that the urbanización itself is registered and to check that the property is as described to you.
5. Check with the Urbanismo, the town planning office, to ensure that the development is in an area zoned for building and that planning permission has been granted, and that there are no other developments planned nearby that could affect your new property.
6. Check that the builder has obtained a Licencia de Obra (Building Permit).
7. Check that he has obtained a Certificado de Fin de Obra (Completion Certificate), and a Licencia de Primer Ocupación (Licence of First Occupation). If the building is not yet completed, make sure that the contract includes a warranty from the developer that he will obtain and pay for these certificates, and provides penalties if these are delivered late. If you are happy with these checks, and proceed to the contrato de compraventa, you should ensure that this contains the following provisions:
1. The total price for the building, completed and ready for occupation, including obtaining the Licencia de Obra (Building Licence), Certificado de Fin de Obra (Certificate of the Building Completion), Licencia de Primer Ocupación (Licence for First Occupation). These documents are essential, as without them you will not be able to obtain an escritura or register for utilities. The builder / developer should be responsible for obtaining these and for paying for them. If a builder should try to persuade you to declare a value lower than the purchase price – just as for a resale property - do not agree to this. Remember that tax inspectors can impose penalties, and that in any case you will probably have capital gains tax to pay (35% of any gain if you are non-resident). 2. Arrangements for payment of any deposit and advance payments. The contract should provide that advance payments will only be made on receipt of the architect’s certificate confirming that the relevant stage has been completed in accordance with the specification and to his satisfaction.
Normally, 10% or 15% is paid as a deposit, with further payments of 15% or 25% each when the roof is completed, when the fitting out is completed, and the balance of between 35% and 65% when the escritura is signed and the property handed over. If you buy when the construction is at a more advanced stage, it is reasonable that the deposit will be higher. 3. The guarantee (certificado de garantia), in accordance with Law 57/68 reinforced by Decree 515/89, that that the deposit and any stage payments made are covered by an equivalent bank guarantee or insurance bond, and that in the event of non-completion, the buyer is entitled to the return of all money paid during construction plus interest at 6%. 4. The completion date for the building. A penalty should be provided for late completion (completion should be specified as when all building and infrastructure has been completed, and the necessary certificates obtained). Equally, there will be a penalty clause to protect the builder / developer that if you fail to make the payments specified, the contract becomes null and void and any rights or obligations provided by the contract will lapse. If there is any dispute the courts will decide the outcome – you may lose any deposit or other payments made, and the builder could be free to sell the property to another buyer. 5. Especially if the property construction has not yet started, a detailed plan of the property with dimensions and specification (including quality standards) of the fixtures and fittings, in particular for kitchen and bathroom – this is often annexed to the contract (memoria de calidades). Even if the building is part-completed, you should still obtain this memoria, as it will enable you to ensure that building is up to standard.
6. The builder / developer is responsible for the installation of gas, electricity and water and sewage. The buyer should be responsible only for payment of the installation of any meters and for the actual gas cylinders, if mains gas supply is not available.
7. The cuota de participación (share of the total costs) in the comunidad de propietarios
(Community of Owners). Even if this has not yet been formed, and no subscription has yet been calculated, your share will be determined by the size and facilities of your property, and this will be known. If the comunidad has already been formed, the contract should specify either the current fees, or the generally expected level of fees for next year.
8. The developer / builder is responsible for the payment of all debts on the land, especially the IBI, until the escritura is signed.
9. The buyer will only be responsible for the payment of the costs of the escritura de
compraventa, not for the segregación or division horizontal (i.e. the division of the whole plot
of building land or urbanization into individual titles), and the declaración de obra nueva
(declaration of new building). Both of these must also be notarised public deeds (escritura publica) in order to be legally valid, and before signing the escritura de compraventa, you should ask for proof that these have been registered. They should be paid for by the builder / developer. 10. If possible, you should try to include a provision that 5% or 10% of the construction costswill be withheld for 3 or 6 months, in case any faults should appear. Few if any builders will be happy to accept such a clause, but there is no harm in asking, and you may get some concession. In any event, a builder is legally liable for any defects in a new property. Until May 6th 2000,
this was a civil law matter: the responsibility was for 15 years after completion, but the only way of enforcing an unresolved problem was to take the builder to court. The new Ley 38/1999 de 5 de noviembre sobre la Ordenación de la Edificación (Building Standards Act) came into force on May 6th 2000, and this provides obligatory protection. Serious defects affecting safety are covered for 10 years and the builder must have insurance cover for this. The policy must be given to the notary, and details of the policy must be included in the escritura, and without this the sale transaction cannot be notarised. Other defects affecting the habitability of the property (such as for example failure of electricity or water) – but not affecting safety – are covered for 3 years. Other minor defects are covered for 1 year. In the last two cases insurance cover is not required, but obviously if a builder can offer this as
an additional guarantee – so much the better. Once you have bought the property and had the escritura notarised, you need the copia simple in order to register the property (dar de alta) at the Recaudación Provincial for the payment of the IBI, in order then to be able to register for water and electricity supplies. This could also be
included in the contract, although it may be better to ensure that you or your lawyer does this in order to ensure that it is done on time and properly.

13. Having your own Property Built

This is perhaps the most difficult option, generally only to be recommended if you are already familiar with the Spanish market. It goes without saying therefore that you will need the services of a specialist lawyer, as well as your architect. The first step is to check with the local Ayuntamiento that you can get permiso de obra (planning
permission) to build on the land you want to buy, and if so, what the limits would be. Land in Spain is zoned for development, which can restrict your options. There are green zones and rural areas where development will not be allowed. There are also rules which limit building size in relation to plot size. The Ley de Costas may also limit your options. The permiso de obra may cost you up to 5% of the estimated building costs. Land zoned for development or where building is allowed is called “suelo urbano”. If you are buying land which is classified as “suelo urbano”, it is possible to mortgage this on the normal terms and conditions. If you are buying land where building is not allowed – “suelo rustico” – the maximum mortgage amount is 50% of the value, and the maximum term 12 years. If you are buying a property in the country to restore or redevelop, there can be additional problems. It is often the case that escritura do not exist for such properties, and you need to establish your right to the property through a process known as expediente de dominio. This is a complex process involving publication of your claim in the Boletin Oficial del Estado (the Official
Gazette). Once you have done this, you need to ensure that the records of the Registro de la Propiedad and the Catastro agree, and that these are in accordance with what local custom holds to be the property boundaries. You are only allowed to build on a certain percentage of the land area. You need to check for availability of utilities – especially water and electricity. You need to check for servidumbres de paso (rights of way) as these cannot be blocked. For all these you need the services of your lawyer. You then need to appoint an architect, and to agree a contract with him which specifies exactly what he is responsible for, timescales, and costs. His fees are recommended by the Colegio (note that they no longer fix set fees, so they can now vary) and are around 6% of the estimated costs of construction – you will be invoiced for 70% at the start of building, and 30% on completion (this will allow for any change in the final cost of construction). The architect’s fee includes the preparation of the memoria de calidades. It is very detailed, including for example the formula for the concrete, the type of materials, and the size of pipes. The architect will instruct an aparejador, a qualified architectural engineer, who will supervise the building, carry out on site inspections, and ensure the building is to the required standards. He will
issue the architect’s certificates which are necessary to obtain the Certificado de Fin de Obra (Completion Certificate), and the Licencia de Primer Ocupación (Licence of First Occupation). The aparejador will charge around 3% of the estimated building costs. You need to instruct your architect and your lawyer to inspect the Plan General de Ordenación Urbana (PGOU) – the Town Plan. If you are buying a plot in an urbanization, you also need to check the proyecto de urbanización and the plan parcial. These together will tell you what other developments are planned for the area, whether the urbanization is registered and legal, and anything affecting the individual plots themselves. It will also tell you what building permits will be issued around your new property, and what the building regulations are. This is a complex and specialised task, and you need your expert advisers to do it for you. One of the complaints often heard is about “unexpected” developments, which block the wonderful view when the land was first bought. The first point here is that if you have obtained planning permission, it is logical that others will be able to in that area. The second point is that over 80% of the costas in the provinces of Alicante, Castellón and Valencia have been zoned for development, and there is still huge demand for building land – so if there is any spare land available, always assume that it will be built on. Only if you overlook a “green” zone are you likely to be saved from building development, and even here the zones can be changed unexpectedly as in the UK, so this is still no long-term guarantee. Careful inspection of the PGOU should help.
You will need to prepare an exact specification for the building, and then find a reliable builder. Your architect may accept responsibility for this, and for supervision. You need to agree a completion date, with a penalty clause for late completion. This needs to be incorporated into a legally binding contract with the builder.
This contract should include very similar provisions as in the previous section. If you are happy to proceed, you then need to proceed with the contrato de compraventa for the land, more or less as outlined earlier in this Guide. Some of the pre-contract enquiries will not be required (depending on the history and previous ownership of the land), but you do need to make sure that the IBI are paid up to date. In this case you will eventually have two escritura – one for the original purchase of the land, and the second for the building. These will be treated separately for capital gains tax purposes.In this case there is no legal reason why you could not obtain a mortgage, but most lenders in Spain are reluctant to lend on “self-build” projects (autoconstrucción) due to the high risk that something will go wrong. As in the case for buying from a developer, we at mortgages-in-spain are prepared to “pre-approve” your application for when the property is completed and sold, and issue you with a formal letter of intent (subject to completion and valuation), which should enable you to obtain bridging finance with your own bank.

14. Letting your Property

The law in Spain differentiates between long-term rental contracts, and short-term holiday lettings. Long-term contracts are governed by a national law, the “Ley de Arrendamientos Urbanos”, which was last updated in 1999. As in the UK, this is a very complex area, and it is absolutely essential that you use a lawyer to ensure that you understand and comply with the rules, and that you create a valid and legally binding contract. Short-term holiday letting, on the other hand, is regulated by the provincial governments (“juntas provinciales”) – so, for example, the junta provincial of Andalucía governs the Costa del Sol, and that of Valencia the Costa Blanca.
In Valencia, as an example, the provincial government requires that all owners or letting agents who intend to let their property should first apply to the regional tourist authorities. They will inspect the property in order to determine whether to allow or refuse the letting. If they issue a permit, this will state the conditions which must be fulfilled (which could include for example, the provision of sufficient smoke detectors and fire extinguishers). The rules vary widely between areas: in the Canaries, the rules are so strict that very few properties are officially approved for letting. 26 Until recently, the rules have not been rigorously enforced, and the vast majority of properties have been let “illegally” with no tax being paid on the income. In Valencia, the government has estimated that only some 17,500 properties are officially registered, out of over 100,000 which are actually let, and because of this, it is losing almost £100m. a year of tax revenue. This is now beginning to change as a result of two factors: (1) the need for public authorities to attempt to balance their budgets as a result of the requirements of the Single Currency; and (2) increasing campaigning by the hoteliers, who are increasingly finding they cannot fill their hotels as a result of the increase in private lettings (in July 2000, occupancy in Andalucía was only 63%). The hoteliers are a very strong lobby in Spain and their influence should not be under-estimated. It is therefore likely that the provincial governments will increasingly focus their attention on this area in the coming years, in an attempt to increase their tax revenue and to placate the hoteliers. Non-residents should pay a 25% “withholding tax” on income from letting their property, whilst residents should include this income in their total income tax declaration. Agents must also retain and pay to the tax authorities in advance a percentage of the rental income for which they are
responsible. If an owner is found to have let his property without registering or otherwise complying with the provincial laws, he will be charged not only with breaking the law on lettings, but also with the unpaid back taxes, and fines for late payment of the taxes. Our advice once again must therefore be to consult a lawyer to ensure that you understand and follow the legal requirements in the province in which the property is situated.
15. Inheritance
The final consideration when you buy your home in Spain might be the position regarding inheritance law and inheritance tax. Inheritance law is governed by the law of the country of nationality of the deceased person. Unfortunately, this position is complicated because UK law provides that for property matters, the law of the country where the property is situated should apply. However, for property situated in Spain, Spanish inheritance tax rules apply. So this is a very complicated area, made worse because there is no double tax treaty between the UK and Spain covering inheritance tax. You must take legal advice, more so as there is scope for tax
planning here to reduce your liabilities. What follows is a simplified explanation of the situation – but the interpretation of the rules could change at any time, and it is essential to take legal advice.
Inheritance Rules and Making a Will:
In theory the position should be relatively simple: as stated above, UK inheritance law applies to a UK national who dies owning property in Spain. The complication is that UK inheritance law actually provides that the disposal of immovable property (land and buildings, household and personal goods) abroad is governed by the law of the country where the property is situated (other rules apply to other types of assets such as bank accounts and investments). So UK law actually says that Spanish law should apply to Spanish property! Nevertheless, Spanish law helps avoid any problems in the majority of cases by providing in Article 9 of the Spanish Civil Code that, when a foreign property owner dies, having made a will in either Spain or his country of nationality, even if he holds an official residence permit (residencia) in Spain, the disposal of any assets he owns in Spain will be governed by his own national law, not Spanish law. If his own law permits free disposal of the assets, this frees him from the Spanish inheritance law [but not from Spanish inheritance tax]. To be valid in Spain a will has to be registered at the Spanish Registrar of Wills (Registro Central de Ultima Voluntad). When registering a will, a foreigner has to sign a declaration under Article 9 that his own national law is ruled by the principle of free disposal of property by testament (i.e. that in the UK you can dispose of your property as you wish in your will) and that there is no equivalent to the Spanish Law of Obligatory Heirs (Ley de Herederos Forzosos) in the UK. This is the case in the UK for property situated in the UK, and as a result the Spanish Registrar of Wills (Registro Central de Ultima Voluntad) has so far accepted this declaration for UK nationals. Providing this interpretation does not change, there is in practice only one major difficulty. If a person who would have benefited under the Spanish Law of Obligatory Heirs (Ley de Herederos Forzosos) challenges in the Spanish courts a will of a UK national based on the Article 9 declaration providing for the free disposal of property, the Spanish courts will first look at the UK law, find that it applies Spanish law to the disposal of property, and so apply Spanish law –and a person who would have inherited under the Spanish Law of Obligatory Heirs will therefore have his challenge upheld. If therefore there is any possibility that you might make a will which disposes of your Spanish property in a way which could be challenged, it is definitely necessary to consult a lawyer with specialist expertise in this area. If a foreign owner of property in Spain dies without making a will, whether resident or not, there is no dispute: his property will be disposed of in accordance with Spanish inheritance rules. But, as in the UK, to administer an estate where the person has not made a will takes more time, trouble and money, so you should make a will to deal with your Spanish assets. In case you fall into one of the areas where Spanish law may be involved, we have provided a brief summary of the Spanish inheritance rules in the Annex at the end of this Guide.If you are happy to proceed with a will providing for free disposal of your Spanish property, it may at first sight seem easier if this will was made in the UK. But there are some problems with this, and we have summarised these in Annex 2.
Inheritance Tax: Inheritance Tax is governed by the 1988 Ley del Impuesto sobre Sucesiones y Donaciones (Inheritance Tax Law). This provides that non-residents who own property or rights in Spain, of whatever nature, are automatically subject to inheritance tax. It also creates some important exemptions which reduce the tax for smaller inheritances, and “multiplication coefficients” which increase it for larger inheritances, and for inheritances received by non-relatives or wealthy inheritors. This makes it a very complex subject, as the tax not only depends on the value of the
estate, but on the wealth of the recipient. In general, the taxation of inheritances for non-residents follows the same rules as for residents: in the valuation of property, the availability of allowances and charges or costs which may be deducted, the ability to accumulate transfers previously made, reductions in the tax base for “hereditary acquisitions” (adquisiciones hereditarias), and provisions for the authorities to check the values, and determine the tax due. For inheritance tax purposes, property is valued at the higher of the market price, valor catastral, or the value set by Hacienda for wealth tax purposes. In most cases it will be today’s market value. Since 1997, official residents leaving their Spanish property to a spouse or children have a 95% exemption in the tax base up to a maximum of around EUR 120,000. It is also available if the property is left to a sibling who is over 65 years of age and who has been living in the property for at least 2 years. This exemption is not available to non-residents. Also, it only applies to the family home, not to other assets. The inheritor must keep the property for at least 10 years, otherwise he will have to pay the tax which would have originally been due on the amount of the exemption. However this exemption will remove many inheritances from the scope of tax. Remember also that in the case of a jointly owned property, where one owner dies, it is only half the value which is included in the estate. The tax base is then further reduced by any debts owing by the deceased, mortgages, and the expenses of the last illness and the funeral costs. The rules for calculating the amount of inheritance tax due are very complicated, and depend largely on the value of the estate and a “multiplication coefficient” (coeficiente multiplicador), and in addition have changed considerably in recent years. Here we provide, purely for illustration purposes, a very simplified overview, based on the law and tax rates applicable in 1999. As these may have changed, it is important that you take professional advice in all cases. Having first applied the above exemption and deductions, the first EUR 16,000 in the hands of each adult inheriting relative is exempt from tax. Inheriting relatives under the age of 13 receive an exemption of EUR 48,000. Between the ages of 13 and 21, there is a sliding scale of EUR 4,000 a year. So an inheritor aged 20 receives an exemption of EUR 20,000. This exemption applies to direct relations – parents, spouses, children and siblings. The exemption is halved for uncles, cousins and nephews. For more distant relatives, or non-relations, there is no exemption. To illustrate this, let’s assume that you are a resident, your only asset in Spain is your home, and this is worth, say, EUR 300,000, and is in joint names, and will be left to your spouse and, say, two adult children: (1) only half the value is owned by each owner and would go into the estate: EUR 150,000. (2) EUR 120,000 is exempt, leaving only EUR 30,000, or EUR 10,000 taxable for each inheritor. (3) each inheritor has an exemption of EUR 16,000, which means that they pay no tax at all. So for most small and medium sized inheritances (the EUR 300,000 in this example is around £175,000) there will be very little tax to pay. But if the inheritance is larger, or if it is received by non-relatives or wealthy people, the situation becomes more complicated and expensive – we have provided a summary of the situation and an illustrative example in Annex 3. So far as the UK tax position is concerned, if you are domiciled in the UK (which as explained above, most people will be unless they have severed all links with the UK and made Spain their permanent home with no intention of ever returning to the UK), you will be liable to UK inheritance tax on your world-wide assets. There is no double tax treaty with Spain for inheritance tax, but the Inland Revenue currently grants “unilateral relief” against your UK tax liability of an amount up to the amount paid in Spain. If the tax charged in Spain is more than that due under UK tax the relief is limited to the amount of the UK tax. If you are concerned about inheritance tax implications in the UK, the Capital Taxes Office operates a helpline on 0115-974-2400, or you can order booklet IHT18 on inheritance tax aspects For inheritance tax purposes, property is valued at the higher of the market price, valor catastral, or the value set by Hacienda for wealth tax purposes. In most cases it will be today’s market value. Since 1997, official residents leaving their Spanish property to a spouse or children have a 95%
exemption in the tax base up to a maximum of around EUR 120,000. It is also vailable if the property is left to a sibling who is over 65 years of age and who has been living in the property for at least 2 years. This exemption is not available to non-residents. Also, it only applies to the family home, not to other assets. The inheritor must keep the property for at least 10 years, otherwise he will have to pay the tax which would have originally been due on the amount of the exemption. However this exemption will remove many inheritances from the scope of tax. Remember also that in the case of a jointly owned property, where one owner dies, it is only half the value which is included in the estate. The tax base is then further reduced by any debts owing by the deceased, mortgages, and the expenses of the last illness and the funeral costs. The rules for calculating the amount of inheritance tax due are very complicated, and depend largely on the value of the estate and a “multiplication coefficient” (coeficiente multiplicador), and in addition have changed considerably in recent years. Here we provide, purely for illustration purposes, a very simplified overview, based on the law and tax rates applicable in 1999. As these may have changed, it is important that you take professional advice in all cases. Having first applied the above exemption and deductions, the first EUR 16,000 in the hands of each adult inheriting relative is exempt from tax. Inheriting relatives under the age of 13 receive an exemption of EUR 48,000. Between the ages of 13 and 21, there is a sliding scale of EUR 4,000 a year. So an inheritor aged 20 receives an exemption of EUR 20,000. This exemption applies to direct relations – parents, spouses, children and siblings. The exemption is halved for uncles, cousins and nephews. For more distant relatives, or non-relations, there is no exemption. To illustrate this, let’s assume that you are a resident, your only asset in Spain is your home, and this is worth, say, EUR 300,000, and is in joint names, and will be left to your spouse and, say, two adult children: (1) only half the value is owned by each owner and would go into the estate: EUR 150,000. (2) EUR 120,000 is exempt, leaving only EUR 30,000, or EUR 10,000 taxable for each inheritor. (3) each inheritor has an exemption of EUR 16,000, which means that they pay no tax at all. So for most small and medium sized inheritances (the EUR 300,000 in this example is around £175,000) there will be very little tax to pay. But if the inheritance is larger, or if it is received by non-relatives or wealthy people, the situation becomes more complicated and expensive – we have provided a summary of the situation and an illustrative example in Annex 3. So far as the UK tax position is concerned, if you are domiciled in the UK (which as explained above, most people will be unless they have severed all links with the UK and made Spain their permanent home with no intention of ever returning to the UK), you will be liable to UK inheritance tax on your world-wide assets. There is no double tax treaty with Spain for inheritance tax, but the Inland Revenue currently grants “unilateral relief” against your UK tax liability of an amount up to the amount paid in Spain. If the tax charged in Spain is more than that due under UK tax the relief is limited to the amount of the UK tax. If you are concerned about inheritance tax implications in the UK, the Capital Taxes Office operates a helpline on 0115-974-2400, or you can order booklet IHT18 on inheritance tax aspects

Annex 1 Spanish Inheritance Rules
Spanish law provides rules for inheritance (known as the Law of Obligatory Heirs or “Forced Inheritance Rules”- Ley de Herederos Forzosos,). The following explanation is based on the law in force in 1999, and is provided solely for illustration. The law may have changed since then, and you should not therefore rely on its accuracy (please refer to the disclaimer the legal notice in the site). If you are concerned about inheritance matters, you must take specialised legal advice. The law provides that a spouse keeps half of all property acquired during marriage, so if the property is owned jointly, it is only half which goes into the estate. The law then provides that, in dealing with the property in the estate:
(1) a spouse is entitled to a life interest (usufructo vitalicio) in one-third but ownership of this third must be willed to surviving children - the testator (the person making the will) can choose how this is divided, and the children do not inherit outright until the spouse dies;
(2) outright ownership of another one-third must go to the surviving children in equal shares; and (3) the remaining one-third can be disposed of freely. (4) if there are no children, then surviving parents have a right to one-third if there is a surviving
spouse, and one-half if not. So for a married couple with children, if we assume that one spouse would probably want to will as much as possible to their partner, the best achievable situation would be:
(1) a spouse would keep his/her own 50%;
(2) they could then inherit one-third of the other half under free disposal;
(3) they would have a life tenancy in another third of the other half.
That means that ownership of only one-third of one-half (i.e. one-sixth or 16.6% of the total) need actually pass directly to children. So if this suits your intentions, you have no problem and you can go ahead and make a Spanish will in accordance with the Law of Obligatory Heirs. Other clauses can be written into a Spanish will to further help the position of the spouse. Practical aspects: There are specific rules governing the contents and form of a will in Spain, so you must see your lawyer to prepare this. The will must be drawn up in two columns, one in Spanish and the other in English. It must then be notarised, when it becomes known as a testamento abierto (an open will), which is the usual form. The notary keeps the original, gives the testator an authorised copy, and registers it at the Registro Central de Ultima Voluntad. If you wish to keep the provisions of your will secret, it is possible to make a testamento cerrado (closed will). Finally, do make sure that your Spanish will deals only with your real property in Spain, and that your “foreign” will expressly excludes this. Other points: Spanish law also states that any foreigner officially resident in Spain is subject to Spanish inheritance law on his world-wide estate. But again in practice, the authorities do not ask whether the testator is an official resident or not. They accept as valid the Spanish will disposing of only the Spanish property. The only requirement is the payment of Spanish inheritance tax on assets located in Spain.

Annex 2 Why you should not dispose of your Spanish property through your UK will So if you are happy to proceed with a will providing for free disposal of your Spanish property, it may at first sight seem easier if this will was made in the UK. But there are several problems with this. First of all, you can only make a UK will if you are still regarded as officially domiciled in the UK. Domicile is usually very difficult to change, so this should normally not be a problem. But a person who has lived for most of their life in Spain, has severed all ties with the UK, has no assets or income in the UK, has truly made Spain their permanent and only home, and has no plans to return to the UK in old age, is likely to be regarded as domiciled in Spain, and may have a problem in making a valid UK will. But “domicile” is a general law concept, so is not strictly defined, and this is certainly an area which needs specialist legal advice. Second, in order to legalise a UK will for Spain and be able to execute it (to be able to transfer the property ownership, make a new escritura, register the change, and eventually sell it), there are several steps that must be taken: 1. A certified copy of the grant of probate must be legalised by the Spanish Consul in the UK. 2. A Spanish translation of this certified copy must be prepared and validated by the Consul. 3. A Spanish lawyer must be empowered to prepare a list of the assets in Spain, and to execute the will, and pay the inheritance taxes. 4. The Spanish Consul must prepare a certificado de ley (certificate of legal compliance),which confirms that the testator had the legal capacity to make a will; that the will is valid; that the Spanish Law of Obligatory Heirs does not exist in the UK; that the will has been duly proven; and that the trustees named have the legal powers to administer the estate. It declares your will effective to be executed in Spain, and authorises your lawyer to carry this out.

Annex 3 Calculation of Spanish Inheritance Tax
The following information and examples are based on the law in force in 1999, and are provided solely for illustration. The law may have changed since then, and you should not therefore rely on its accuracy (please refer to the disclaimer the legal notice in the site). If you are concerned about inheritance matters, you must take specialised legal advice. The rates are generally on a sliding scale ranging from 7.65% to 34%. As a rough guide, the tax due on an inheritance – after allowing for all the exemptions and deductions –
of EUR 30,000 is approximately EUR 2,850 (9.5%);
on EUR 60,000 is approximately EUR 6,000 (10%).;
on EUR 120,000 is approximately EUR 15,000 (12.5%);
on EUR 150,000 is approximately EUR 21,000 (14%);
on EUR 240,000 is approximately EUR 39,000 (16.25%); and
on EUR 600,000 is approximately EUR 150,000 (25%).
Where the property is left to distant relatives or non-relatives, the tax is a flat rate of 18%. Where a single person dies childless and the estate is left to a non-relative, it is a flat rate of 22.95%. However these rates are increased by a series of “multiplication coefficients” to allow for the closeness of the inheritor’s relationship to the deceased, and for the inheritor’s existing wealth (in Spain). For spouses and children inheriting, where existing wealth does not exceed EUR 400,000, there is no increase. If a spouse or child already owns more than EUR 400,000, the tax is increased by a factor of 1.2. For cousins and uncles, the factors range from 1.5882 if existing wealth does not exceed EUR 400,000, to 1.9059 if it exceeds EUR 4m. For non-relatives, they are 2.0 and 2.4 respectively. You can also do some tax planning by taking a mortgage to reduce the net value of the estate in Spain, and by transferring some of the ownership now, or by transferring the property into a trust company registered in Spain or another EU country (but not in offshore centre). That is all fairly complicated, and it is true that inheritance tax can be very high. If you are likely to be badly affected by inheritance tax, it may be worth considering buying the property in the name of a trust company (but not based offshore!), or “selling” the property to your heirs. This will cost you around 10% in transfer taxes, but this could be less than the inheritance tax in some circumstances. It is again an area where you need expert legal advice.

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