Your lawyer: your only “friend” in a real estate transaction

It has always caught my attention that most people go accompanied by a trusted friend when they go to make a purchase they feel is important. For example, what future bride doesn’t go with her friends so that they can honestly tell her how the most important dress of her life looks on her? She knows perfectly well that although the store clerk may tell her the truth, she won’t be as honest as her friends. The future bride knows in her heart that at that moment, the store clerk has a sale she’ll get a commission for.

Here’s another more specific case. This week, a relative explained to me that he had accompanied a friend in order to help him choose a car. This relative, a cousin, was surprised when the guy at the dealership tried to convince his friend to buy a large family car. My cousin thought: Why would the salesman be convincing him of this if my friend is single, childless, and not planning to start a family for a long time? Then he understood. Although his friend had come in interested in and asking about another car, the truth was that he wasn’t completely convinced; the salesman clearly saw that doubt and took advantage of it. The large family car was much more expensive than the other car. More money, more commission. Even so, my cousin got the idea out of his head and the sale didn’t take place. That friend trusted my cousin more than the car salesman. 

Curiously, most people don’t go accompanied by their “best friend” in a real estate transaction, and blindly trust the seller. 

And who is your best and only friend in a real estate transaction? Your lawyer, because they’re the only one who will look out for your interests. A lawyer’s duty is solely and exclusively to the interests of their client. Let’s not forget, the real estate agent is primarily interested in selling the apartment or house. If they don’t sell it, they don’t earn anything. That’s their job. There’s nothing wrong with that, when someone does their job the best they can.

However, the lawyer is indifferent to whether the sale occurs; their only desire is for their client to buy or sell with full legal certainty. If that isn’t the case, they will honestly advise you not to carry out the transaction. Of course, the lawyer also wants their client to buy the property and be happy, but will only want them to purchase a property accompanied by full legal certainty. 

In addition, the lawyer is the main legal agent in a real estate transaction who can review the different contracts that may be involved, from the deposit to the earnest money contract to the final sale.  

We lawyers know that there are properties with very old registration records that must be cancelled before purchase. The most important examples include lifetime usufructs and long-term leases.

When reserving a property, you usually must sign a deposit contract (arras in Spanish). We strongly recommend that you have it reviewed by a lawyer before signing, since some arras contracts deceptively conceal a true purchase agreement.

It must be verified that the property is not mortgaged, or if it is, that said mortgage has been cancelled correctly. On more than one occasion, we have seen arras contracts where it says that the property is being sold without encumbrances when there is a mortgage. 

Before making any payment, either to the real estate agent or the seller, make sure to check how said payment will be made, since some arras (or deposit) contracts are written in such a way that you could lose the deposit if you do not finalize the purchase agreement.

There are also a number of certificates that must be signed before a notary that sellers, due to ignorance the law, do not typically provide unless the buyer expressly requests them.

These points are often ignored, as we have said, usually due to ignorance of the law by sellers or intermediaries who are not lawyers. Keep in mind that they are primarily interested in selling the property, whereas a lawyer will only look out for their clients’ best interests.

Our goal is to ensure that everything is handled properly before payment or accepting the keys in order to avoid subsequent unnecessary problems.

In summary, the lawyer makes the process of buying or selling a property transparent to the main protagonist of the transaction: the client. This advice is, if possible, more important for foreign clients who want to purchase properties in Spain. It is essential for them that the transaction be endorsed by lawyers who will carefully look out for the legal interests of foreign buyers in our country. 

Only a lawyer will look out for the interests of their client in a real estate transaction. The lawyer is the one who ensures that the client purchases the property with all guarantees, and we’re not interested in making a commission. Finally, don’t believe them when they say to “take it off their hands”.

Celsa Núñez, Managing Partner at ICN LEGAL

931 060 620