So, my apartment is up for sale. Can anyone tell me what the legal process is should an offer be made and I accept? Maybe there is already a thread on this subject but I am in a rush this morning and haven't had much time to look. Any help would be appreciated.
The legal process is complicated, do it yourself at your peril
xx
I'm not doing it myself but I don't trust many agents on the Island and was looking for a little advice.
Why not just ask for a recommendation of an honest agent?
Just about to say the same .....
Employ our well known Janet, active on another forum, very reasonable, independant, and very well respected. Can't give a link to her website, as it will be filtered out:cry:
First ask the agent if the buyer is using a lawyer and if yes, say you want that lawyer to hold the deposit - most agents take (and hold) 10% of the sale price (though CIM & atlantico will be along soon saying much less should be given :)) ... you basically do not want the agent (unless well recommended) holding the deposit (agents hold it to be ensured their fee is paid) ... if it is an agent such as Clear Blue Skies then you will have no problems (and they will have strongly suggested the buyer use a lawyer anyway).
The agent or lawyer will draw up a contract (you will need to supply a copy of your Escritura/property deed - if you do not have it, ask the bank if you have a mortgage with them)- contracts are fairly standard - date of completion, 10% deposit - forfeited if buyer cancels before completion, onus on seller to pay double the deposit if s/he pulls out of the sale (CIM will be recommending to buyers to have deposit subject to mortgage clause - not in the sellers interest if he has to wait a long time to be sure the sale is going through). Seller to pay Plus Valia (tax on increase in value of site since last purchase transaction - again, good agents/lawyers will find out this amount from the Tax Office and withhold it at the sale to be sure it is paid, for the buyer will be left with the debt if not). Some sellers look for a price to be paid separately for their furniture - have you instructed your agents on this or are you including it - if you ask for a separate price, you run the risk of the buyer saying No and you are left with furniture you have to remove.
You have to provide proof (official receipt) that your Community charges are paid up to date (wait until you have a definite closing date before asking for that) and likewise a receipt for your current/last IBI (rates) payment (sort the IBI out now). Depending on the age of the apartment, you might need to negotiate over the electricity staying in your name for a few months (prepaid by buyer) - over 20 years old and the buyer will not be able to change account into his name without a new Boletin/official certificate from an Electrician - if staying in your name, bring along proof your last Electricity bill was paid by you)
Talk to your Bank if you have a mortgage - they will charge you a cancellation fee and have to appear on the same day at the Notary to sign and receive their cheque from the proceeds of the sale (note - more for buyers - do make sure this mortgage cancellation is officially registered soon after the transaction ... I was caught recently where it was not, and I had used a lawyer :()
The buyer has the choice of what Notary to be used - often the agent or lawyer will go with who they are used to doing business with. On the day of signing, you will need your passport and your NIE/Residencia Certificate ... you will also need those receipts mentioned above and also an original copy of the receipt for the deposit along with the number of the account it was paid into (this is to counter moneylaundering) ... if you are a Tax Resident in Tenerife you will need a formal certificate from Hacienda (Spanish Tax Office) saying that you are registered with them - otherwise, 3% will be deducted from the total purchase price by the buyer (by law) and paid over within 30 days: this is to cover the presumed Capital Gains Tax - if you are making a loss on the transaction or the gain is less than the 3%, it can be reclaimed (use a Gestor). Be sure that you have a receipt for the agent's fee for you can deduct this from the price when calculating any gain (some agents are unhappy to provide this as they do not want the fee declared, so before accepting any deal they propose, be sure to specify that you will require an offical receipt). Also, if you have carried out any major repairs whilst you have owned the apartment, you can deduct these expenses too - as long as you have an official receipt for the work, which is another reason to use legal tradesmen :)) There are still some buyers who will want to offer "black" money - it's illegal, used be common practice - still happens and the cash changes hands outside of the Notary's office
The signing will be in a Notary's office and the documents will be translated for the buyer and often the Notary will go through it himself explaining it in English. Try not to give a Power of Attorney to someone to close the sale for you unless you have complete confidence in them ... and if you do, make sure it is a specific time limited Power.
Things often do not go smoothly, usually because the agent is incompetent or the lawyer, lazy - twice I have experienced lawyers to be completely unprepared and I made the mistake of giving one particular lawyer a Power only for him to sign without checking all the Boletins were in order (they weren't and it was a costly mistake for me, the buyer)
Think that about covers the procedure but open to correction :)
That answer should be made a sticky :)
I really think you should have gone in to a little more detail Doreen...!!! I think this should be made a sticky too, I got in a bit late there Vortex.
Excellent advice from Doreen and it should be well heeded to as she is a veteran buyer and seller here and very knowledgeable...and I still can't believe that some people 'think' about whether or not they are going to use a lawyer. Whether you are a buyer or seller, I would always recommend the use if one. It will cost you, but may well save you money in the long term.
I have clicked to say thanks to all the helpful people above.:thanx: