Question:
WE intend to purchase a property in the Valencian Community, probably in the area of Pedreguer, Denia, Javea, etc., and we have received contradictory legal advice on who should pay the expenses and fees of the Spanish notary in relation to the deed of sale.
Some advisors and estate agents have informed us that these expenses are the legal responsibility of the purchasers; others say that such fees must be paid by the sellers and we have also been told that they must be paid on a 50/50 basis.
Could you confirm what the situation is and who is responsible for the costs?
Answer:
Spanish law
In the first place, we should point out that the Spanish Civil Code (Cc) in article 1455 has the following observation as to who must pay the expenses of the granting of the deed of sale;
The expenses of granting of deeds shall be borne by the seller and the cost of the first copy and any subsequent copies will be borne by the buyer, unless otherwise agreed.
Therefore, legally and according to the Spanish Cc, the person responsible for the payment of the notary’s fees is generally the seller, who will pay the notarial cost, but the first and subsequent copies are for the account of the buyers, since it is the buyer who requires the main copy to allow for the registration of the sale in the corresponding land registry.
In practice this means approximately 65 per cent of the total cost should be paid by the seller and 35 per cent by the buyer.
But as article 1455 itself points out, this percentage of notary expenses entered into between the parties can vary if the buyer and seller agree otherwise. Therefore, it is not a hard and fast rule and the parties are free to agree on what they consider to be most convenient.
General practice in the reviewed area
Although the Civil Code is clear and indicates who should pay the expenses, in practice, it is usual for the notary fees be paid in accordance with what are the habits or practices in the area. For example, the custom in the area of Denia, Pedreguer and Javea is that the notary fees are normally paid by the buyer.
On the other hand, in places like Valencia, the normal practice is that they are paid by the seller, whilst in other places it is normal to pay on a 50/50 basis.
It is possible therefore that although the law says one thing, you have received different information, because the practices changes according to the place where the property is located.
Purchase from a developer
Although, as we have indicated, the parties can agree on what they deem appropriate in relation to notary expenses, in the case of a purchase of a property in which the seller is a professional promoter or developer and the buyer is a consumer, if the contract forces the buyer (who is classed as a general consumer) to pay the notarial fees of the deed, it may be interpreted as an abusive clause.
As such this requirement could be nullified because it imposes on the consumer an expense that should legally be the seller’s responsibility, but this position is debatable, since Article 1455 Cc itself says that a different option may be agreed between the parties. It could also be claimed that it is an abusive clause based on the possible lack of transparency contained.
In any case, although the civil code legally attributes the expenses, we recommend that our clients who wish to buy or sell a property in Spain should be aware of the contents of the civil code and what is practice in the area where the property is located in order to expressly agree who will pay the notary expenses in order to avoid problems or misunderstandings.
If nothing is agreed in the purchase contract, or if it is said that the fees will be paid according to the law, then the expenses should be paid in accordance with article 1455 Cc and the majority of the notary expenses will be the responsibility of the seller.
If you need legal advice in order to sell or buy a property in Spain, know the expenses, who should pay them, etc., contact us and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel: +34 966 426 185
E-mail: info@white-baos.com
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