An important but often misunderstood figure in the purchase process is the Spanish notary. Many Benelux buyers assume that the Spanish notary performs the same tasks as his counterpart in their home country. This is a misconception. Unlike the notary in Belgium or the Netherlands, who controls the entire transaction from A to Z, the Spanish notary has a much more limited, passive role. This role is taken over by a Spanish law firm, such as our firm, for example.
The crux of the difference: the referee versus your coach
The fundamental mistake foreign buyers make is the assumption that the Spanish notary proactively researches the property. This is not the case. The Spanish notary is a funcionario público, a public official whose main task is to provide "public testimony" (dar fe pública) to grant the deed signed on his behalf.
The role of the Spanish notary: A neutral referee
It is best to think of the Spanish notary as a highly qualified but strictly impartial arbitrator. His role is passive and limited to the formal aspect of the transaction. Specifically, his duties include the following:
- Identity verification: He checks the identity of the buyer and seller.
- Formalising the deed: He casts the agreements in an official public deed, the Escritura Pública de Compraventa. Often, the first draft of deed contains several errors.
- Property register check: Just before signing, he requests a recent extract from the property register (note simple) to check the most up-to-date legal status.
- Payment monitoring: He ensures the correct exchange of payment, usually by bank cheque, at the time of signing.
- Neutral information: He informs both parties about their rights and obligations, but this is formal, not personal, advice.
Consult an overview of the notary's remit versus Confianz's remit here.
However, a Spanish notary does not check whether there are any illegal constructions, such as an unlicensed swimming pool. He does not delve into the property's licensing history or investigate whether there are future urban development plans that could affect the property, such as the construction of a new road. Nor does he routinely check for outstanding debts with the owners' association (comunidad de propietarios). This is the job of a Spanish lawyer.
How does a notary appointment work in practice?
The role of the lawyer: your (partisan) coach
Unlike the neutral notary, the lawyer is biased and acts as the buyer's exclusive advocate. We are the "coach" who carries out a comprehensive legal, administrative and tax examination, called the Due Diligence. This examination takes place long before the notary appointment is scheduled. And preferably before you sign the private sale agreement,
The Due Diligence includes:
- Legal control: Review of property titles and check for mortgages, attachments or other debts.
- Administrative control: Verification of all building and habitability permits and municipal zoning plans.
- Fiscal control: Check that all local taxes (such as the IBI) and contributions to the owners' association have been paid, so that you do not pay for the seller's debts.
Based on the checks, we make the private purchase contract (contrato de arras) which, after a down payment, will take the property off the market. This is the binding sales contract. If, for example, a building violation is identified, the contract may include a provision that the seller organises a regularisation before the deed is executed. Only when we give the green light in all areas will the notary appointment be made. The signing of the deed is thus the formal finish line, not the starting shot.
Read more about the process of buying a property in Spain.
How can you become a notary in Spain?
The prestige of the Spanish notary comes from the leaden selection process. In Spain, one becomes a notary via the oposiciones: a national state examination known as an intellectual waste race. This system creates a profession with an exceptionally high level of knowledge. They cannot choose their place of employment freely; candidate notaries are assigned to a district by the government and build their career based on seniority. The more experience a notary gains, the better the place of employment he will get.
Who chooses the notary?
In Spain, unlike sometimes in Belgium, there is only one notary for the transaction. The rule is simple: "he who pays, decides". Since the buyer usually bears the notary fees, he has the legal right to choose the notary.
Read more about the role of the Spanish notary during the buying process.
What does the notary cost?
The notary fees (aranceles Notariales) are fixed by law in a Royal Decree and are therefore not freely negotiable. The price is based on a degressive scale linked to the value of the property. However, the total invoice varies due to additional costs for the number of pages, number of copies and other operations. As the costs are usually not entirely clear in advance, commissions are used. These commissions are then settled later based on the invoices.
Learn more about the cost of buying property in Spain here.
How do you safely pay the purchase price?
Payment of the purchase price is a concern for many buyers.
- Spanish bank cheque (Cheque Bancario): This is the most traditional method. The buyer hands over a cheque guaranteed by their Spanish bank to the seller at the notary, at the same time as the keys are handed over. In practice, we handle the bank cheque through our third-party account.
- Third-party account (Cuenta de Terceros): This is the absolutely safest method. The buyer deposits the purchase price in advance into a special, legally protected account held by the notary. The money is transferred to the seller only after the deed is signed. This eliminates any risk.
However, the use of a third-party account no standard practice in Spain. Due to very strict anti-money laundering legislation, using such an account entails a huge administrative burden and responsibility for the notary. Many notaries are therefore reluctant to offer this service.
How are the various purchase price payments made in Spain?
If you have questions about buying property in Spain or are looking for legal help with your purchase in Spain? Our lawyers can assist you and represent your interests. Feel free to get in touch.
