Question:
Dear lawyer,
We plan to sell our property on the Costa Blanca, Denia. The buyer is an English national and like us, he lives in England. We have been told that it is necessary to document the sale in a notarial deed, would it be possible to sign a purchase deed before an English public notary and it be valid in Spain?.
Dear Reader,
Thank you for your interesting question.
In general, it is possible to register foreign documents in Spain, and it is not only possible, but very habitual, fundamentally in our experience: divorce judgments with liquidation of the matrimonial assets-society, certificate of marriages, etc.
The Mortgage Regulation itself states in the Article 36 that:
Documents issued in foreign territory may be registered if they meet the requirements of the of private international laws and rules, provided they contain its legalization and other requirements necessary for their authenticity in Spain.
However, in relation to the validity in Spain of a public deed of sale executed before a foreign notary, we understand that it will have effects for the parties, regarding the obligations assumed between them, etc. What is not so clear, is if it could be registered in Spain, in front of the land registry, since this inscription is fundamental in relation to the effects for third parties.
Therefore, we believe that a public sale deed granted before a foreign public notary is not possible to register in the Spanish Property Registry, and if possible, it would not be advisable. And all this, for the following reasons:
.- The figure of the notary in Spain, its function, training, faculties, obligations etc., has nothing to do with that of public notaries in other countries of the world. In Spain, the notary is a public servant with public authority, although they exercise their activity as a professional. Therefore, we understand that it is not 100% comparable with the notaries of other countries and could affect some guarantees of the process, since even the significance and implication of a public deed in Spain may be substantially different from a public deed in another country.
– The process of transmission in Spain of a property through a sale, the moment of its perfection, consummation, is very different from other countries. And the formalities and requirements of the Spanish deeds are usually very different from those of other countries.
In its resolutions 7th February 2005, and 20th of May 2005, the General Directorate of Registry and Notary Services indicated it is only possible to register deeds granted before Spanish notaries at the land registry.
.- Anyway, it is not advisable: As we have said the figure of the notary in Spain is different from other countries, and notarial deeds, particularly the purchase and sale, are really complex, as notaries must carry out checks in cadastro, land registries, local tax records, and meet innumerable formal requirements. Therefore, it is advisable to do it in Spain in front of a Spanish notary in Spain, who knows all the requirements with which a deed must be counted, and with the guidance of a Spanish lawyer, to ensure that it would be done correctly, and entered in the property registry.
If you have any legal questions, please 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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