Why use a UK lawyer to buy Spanish property?
August 17th, 2010
I’m Peter Esders – an English lawyer who has been dealing with Spanish law for 16 years and who works at an English Solicitors firm – also specialising in Spanish law.
It might surprise you to know that the most common question I get asked when I speak to the public is
Do I need a lawyer when buying a property abroad?
Asking this question of a lawyer always surprises me. However, my answer is equally surprising – no you don’t.There is no legal requirement to use a lawyer when buying in either Spain – or in the UK, for that matter.
Statistics show that in the UK 97% of people would use a lawyer when buying a property, yet for some reason the same logic seems to go out of the window when people go abroad.
No, you don’t need a lawyer, but how on earth people think that they can buy a property in a foreign country where they probably don’t know the legal system or even the language is beyond me.
Independence is essential
Having established that you should use a lawyer, how do you choose one? The first thing is that the lawyer is independent. That means that they are not also acting for or related to the seller or the developer.
This may be common in Spain, but there are good reasons why you need somebody independent – you need somebody to look after your affairs and not have a conflict of interests.
English lawyers have strict rules with regard to Conflicts of Interests and can get “struck off” if they don’t comply with these.
English or Spanish?
The next thing is do you employ an English lawyer or a Spanish lawyer? Clearly whichever one you chose needs to understand Spanish law.
There is normally little point in going to your normal high street lawyer and asking him to help you buy a property in Spain. They are unlikely to know anything about how the law and process work over there.
Therefore whoever you use should understand Spanish law. Ideally they should also understand English law, which is unlikely with a Spanish lawyer.
Why is this? It’s because doing something in one country has an effect on your affairs back home – particularly when it comes to taxes and inheritance.
Having a lawyer who understands both sets of laws can ensure that you don’t accidentally do something that looks like a good idea in one country – but which causes you a problem in another.
There are a few English law firms who also specialise in Spanish law. These have the advantage of understanding both sets of laws and also the advantages of being English solicitors.
More than language
For a start we can speak your own language. Even if a Spanish lawyer speaks good English the nuances of our language can be difficult to understand and sometimes a strict translation does not get across the true meaning of the situation.
We can also explain things in terms that you understand because we can use examples from the UK to explain how the system works in Spain.
Regulations
One other thing to take into consideration is regulation. English solicitors are regulated by the law Society and Solicitors Regulation Authority.
The rules that we have to follow are much stricter than the rules that Spanish lawyers have to follow.
I remember a time not so long ago when Spanish lawyers did not have to have a separate client account or professional indemnity insurance whereas these have been a requirement for English lawyers for many many years.
We also have strict accounting rules to follow with the requirement to balance client money down to the penny, and annual audits. We also have to account for any money received the same day.
I remember a lawyer that I used to deal with in Spain once phoning my office and asking our cashier who the money that we sent to him some 18 months previous belonged to!
Legal recourse
I was recently asked by somebody whether they could sue a Spanish lawyer for the advice that they gave when they helped the client buy a property or at least complain to the Spanish Law Society about their work.
My experience is that yes, in theory both of these are possible, but that in reality what is considered to be negligence in Spain is very different from that in the UK. The lawyer would have had to do something very very fundamentally wrong even to consider this option – and even then the chances of success will be limited.
Documentation
Lastly the standard of documentation that you will receive from a UK solicitor is generally going to be better than that produced by a Spanish lawyer, and will go into more detail.
I often read reports by Spanish lawyers to their clients on a contract which say something along the lines of the contract is OK to sign – without any explanation as to what the effect of signing the contract is, what you are committing to, and so on.
English Solicitors will also not assume that you know how the system works in Spain – we recognise that things that may seem obvious to a Spaniard are not obvious to a “foreign” buyer.
Not only do you need to understand the legalities of the purchase but you also need to have the system explained to you.
About Peter Esders
I was born in Spain to British parents. I have been dealing with Spain for many years and love the country but live in the UK. I therefore have loyalties to both the UK and Spain.
I don’t want you to think that I am unnecessarily biased against Spanish lawyers – after all there are some good ones out there, but I can – without a shadow of a doubt – say that in general a UK Solicitor who deals with Spain has advantages over the majority of Spanish Lawyers when it comes to a Brit buying property in Spain.
I can be contacted at Chebsey & Co
Tell me what legal subjects you want me to write about next
I have read this article with great interest as myself and partner are currently in the process of buying a property in Spain. As with most processes, there are pros and cons, and I can certainly relate to some of the ‘pros’ in the article, particularly the ‘nuances’ of the English Language.
I would totally endorse the need to get an independant lawyer who is not related or connected to the estate agent in any way.
We have recently employed a Spanish lawyer to deal with our conveyancing-I say Spanish but he is actually Dutch, although he is a partner in a Spanish firm. The main advantage for us has been that he has been able to personally call down to the Town Hall to sort some issues out relating to the Catastro which has undoubtedly saved a lot of time. When looking for property, his name came up a number of times with people (ex pats) who had dealt with him 7 or more years ago and they could not recommend him highly enough.
We are still in the process of buying, so it remains to be seen whether I will be highly recommending his firm to others. But at the moment I am very happy with the service provided and would recommend the use of an Independant Spanish firm of lawyers.
Agree with Johns comments we used a local Lawyer who was great.Don´t forget you will be paying for all the calls to Espana etc, plus can a UK based Lawyer be up to speed regards local issues?
John and Phillip,
Thanks for your comments.
I am pleased that your Spanish lawyers seem to be working out for you. There are some very good ones out there and from what you have said you appear to have found some.
I agree, it is important to know what is happening on the ground and to be able to get things done on the ground. This is something that UK lawyers who deal with Spain have had to find solutions to.
On the question of calls to Spain, this not a major expense and is certainly minor compared to the overall cost of buying in Spain. Certainly these expenses are nothing compared to the savings in tax that can be had by having somebody who understands the legal system in both countries (which even for an average person can run to tens of thousands of pounds). In any event some of us don’t even pass on these charges to the clients.
Regards
Peter
Chebsey & Co
According to figures from the Junta de Andalucia, there are some 300,000 properties in the province with dubious legal status.
Whilst I accept that some transactions have been achieved with out legal representation, this may suggest the vast majority of dubious transactions have been carried out by either incompetent lawyers or those involved in criminal activities, motivated by financial greed.
Should we deduce from this that lawyers are the cause and not the solution of illegal house purchases in Spain.
Many of these lawyers responsible for the plight of their unfortunate clients brazenly continue to promote themselves as a solution to this problem, with the knowledge that their controlling body remains impotent.
Is it not time that this so called illustrious body got their house in order.
HOW MANY LAWYERS DID IT TAKE TO CREATE THIS “SPANISH HOUSING SCANDAL”?
I am not sure that lawyers are responsible for the problems that you describe – although undoubtedly some have been involved.
The problem in Andalucia has mainly been caused by corrupt officials giving out illegal planning permission, so the assumption that the problems have been caused by lawyers is not correct.
You would be amazed at how many times I have to help people with property problems and when I ask them which lawyer they used when they bought they tell me that they didn’t.
Probably the most common question that I get asked is whether you need a lawyer when you buy abroad as for some reason people don’t think that they do.
Peter Esders
Chebsey & Co
Very helpful article, but are solicitors in UK able to answer questions like is property on a flood plane? what is crime like in the area? is the area prone to electricity blackouts? water shortages? was a crime ever commited at the property? are thse not questions a local spanish lawyer is more likely to answer correctly? are there any hidden costs or legal obligations to with the property or land?