Escritura pública and registration

Every Spanish purchase has a day on which it becomes real. The parties sit in a notary’s office, a long document is gone through, money moves and keys change hands. The escritura pública signed that day is the backbone of the transaction. The entry that follows in the Registro de la Propiedad is what makes the ownership hard to attack.

What a Spanish notary does

A notary in Spain holds public office and is not a service provider to either side. The office authenticates the deed, identifies the parties, checks that each has the capacity and authority to sign, explains what the document means, and records what the parties declare. It also refuses to authorise what does not add up.

Impartiality is the point and also the limit. A notary will not negotiate the price, will not say whether the flat is worth the money, and will not argue your case against the seller. For that a buyer appoints a lawyer of their own, which is ordinary practice and cheap against the size of the purchase. By custom the buyer chooses the notary.

Where a party cannot attend, a notarised power of attorney can carry the signature, and the power is examined as closely as the passport. One signed abroad normally needs an apostille and a sworn translation.

What is checked before the deed is authorised

Most of the work happens in the days before the appointment, which is why a signing date is set with a little room in front of it. The office gathers the documents that describe the property and its burdens:

• a current extract from the property register, showing the registered owner, the description and any mortgage, easement, seizure or pending claim
• the cadastral reference and the cadastral description of the unit
• for a new build, the licence permitting occupation, the declaration of the completed works and the division of the building into units
• for a resale, a certificate from the community of owners that the charges are paid, and the receipts for the municipal property tax
• the energy performance certificate, provided by the seller and handed to the buyer
• the means of payment — amounts, dates and accounts — so that the deed can state how the price was paid

On its own completions SAVO brings the new-build set to the table, since without the licence, the declaration of works and the division into units no deed can be authorised. Where a charge nobody mentioned surfaces, the usual outcome is a redrafted deed rather than a cancelled sale: the mortgage is redeemed out of the price, or a retention agreed.

What changes at the signing table

The signing itself is short. The deed is gone through, the price and the means of payment are declared, an existing mortgage on the property is cancelled and a new one signed in the same session, and the seller gives up possession — normally the keys, there and then.

Three things shift at that moment. Ownership passes, because Spanish law treats the notarised deed as delivery of the property. Risk passes with it, so cover should already be in place. And the tax clock starts, with a short window in which the purchase tax must be filed and paid.

Before anyone leaves the building, the notary sends an electronic notice of the deed to the property register. That notice books its place in the queue and holds off a competing entry on the same property while the rest of the file is assembled. What then has to be paid, and by whom, is set out under taxes on a Spanish purchase.

From the deed to the registry entry

Registration is a second procedure with requirements of its own. An authorised copy of the deed goes to the register for the district where the property lies, the purchase tax has to be settled first, and the registrar then examines the file.

The examination is formal rather than commercial: the registrar does not re-run the sale. Either the deed is recorded and the register shows you as owner, or a defect is raised in writing and has to be cured — a missing tax receipt, an unclear description, an authority not properly evidenced. A gestor or the buyer’s lawyer usually carries this stage, and it runs in weeks rather than days.

Why registration, and not the deed, keeps ownership safe

Registration in Spain is voluntary, and that is what misleads people. An unregistered buyer holding a valid deed is an owner as against the seller. As against everybody else, the position is far weaker.

The register runs on priority by date of entry and on the presumption that what it says is true. Somebody who buys from the registered owner in good faith, relying on the register, is protected. An unregistered buyer can therefore be overtaken by a later buyer who did register; a charge entered before your own binds the flat; and nothing can be mortgaged, or cleanly sold, out of a register that does not mention you.

The working rule is plain: the deed is the day, the registry entry is the protection. Treat the purchase as unfinished until somebody has put the registry extract with your name on it in front of you, and ask the notary’s office a week before the signing what the file is still missing.