Spain

Pedro Garrido

Public notary, Madrid

Real Property Law – Spain Report

1. Real Property Law – Introduction

1.1 General Features and Short History

The main legal text on private law in general and on real estate law is the Civil Code,

passed in 1889. It was based on Spanish legal tradition which itself was modernized

in accordance with the most rational principles introduced during the time of codifi-

cation. This law has not undergone any serious modifications with respect to rights in

rem (or encumbrances on property).

The Land Registry and mortgages are defined and regulated in the so called Mort-

gage Law (Ley Hipotecaria, or LH, from now on) and in the Mortgage Regulations

(Reglamento Hipotecario, or RH, from now on) both of which contain rules about

other rights in rem or encumbrances. The first LH was passed in 1861, being sup-

planted by new Mortgage Laws in 1909 and 1994. The current text is from 1946, al-

though it has undergone partial modifications. The current RH dates back to 1947, al-

though it has been modified on numerous occasions. The most recent modifications

were due to the introduction of new laws on urban real estate development and on the

operation of the Land Registry, in order to make it run smoother.

The deed, notarial act or public document used to formalize the transfer of real prop-

erty (the so called escritura pública) is regulated by the 1862 Notaries’ Law—

although owing to its antiquity, many of its rules are not applied—and the current

Notaries’ Regulations (Reglamento Notarial, or RN, from now on), which was ap-

proved in 1944, and underwent serious reform and modernization in 1984. Since

then, it has been partially modified on numerous occasions, especially in recent

years, because of the introduction of the electronic signature and because of the need

to organize and coordinate the notary’s actions and the Land Registry.

The Law on Horizontal Property (Condominiums) of 1960 is important in the realm

of real estate and was recently modified (1999).

Civil Law is not the same throughout Spain. There are small variations in some re-

gions (Catalonia, parts of the Basque country, Galicia, Aragón, Navarra, and Balea-

res) which all have certain laws that correspond to the legal traditions of that region.

There are small differences with respect to the rights over real estate, although in

recent years the Parliaments of some of these regions—especially Catalonia—

through the use of the competence granted by the Constitution, have reformed their

legal texts on private law and thus increased the differences, while still following the

same principles and legal tradition. In any event, the regulation of notarial acts and of

the Land Registry is the State’s exclusive competence, and in these matters,

therefore, the legal regime is the same in all of Spain.

The regulation of the Civil Property Law is based on the principles of 19

century

liberalism. In recent decades though (since the 1978 Constitution), laws limiting

property rights, as well as administrative intervention in the use and transformation

of real property, have increased in importance.

Real Property Law – Spain Report

1.2 Property and Estates

In theory, in Spanish law there are institutions, derived from feudal law, in which for

a single real property many ownership titles are given. There are the old ground rents

(censos), still regulated by the Civil Code, in which the direct owner has a property

right allowing him to cultivate and exploit the lands. Additionally, the beneficial

owner has the right to receive certain annual fruits (for example, an amount of

money, a few kilos of wheat, or a chicken and two rabbits every year) from the land

(that is, from the direct owner). In any event, these institutions have almost disap-

peared and only survive in some cases in Catalonia, especially as regards the exploi-

tation of vineyards. Current laws endeavour to put an end to these institutions be-

cause of their poor economic performance, instead allowing the direct owner to get

full and free ownership through a compensatory payment to the beneficial owner.

The general rule is superficies solo cedit, which entails that the owner of a plot of

land always owns whatever is built on his plot.

In some cases, the new building, or the additions to a pre-existing building, can be-

long to someone other than the owner of the plot; as long as he has been given a right

in rem to build and acquire definitively, or he has a so called surface right (derecho

de superficie, or plot or building lease) which allows him to build and own that con-

struction for an established period of time (50, 75, or 99 years), after which the free

ownership of the construction would return to the owner of the plot with or without a

compensatory payment.

Cases of surface rights are rather infrequent. They make up less than 1% of con-

structible properties and appear mainly in the context of actions of different public

authorities and administrative entities.

1.3 Interests in Land

In Spain, there is a numerus apertus system in place. In theory, it is possible to create

any type of right in rem or encumbrance above and beyond those already defined in

the legal texts.

Nevertheless, some important limitations must be taken into account: in order to be a

true right in rem, that is, an encumbrance enforceable erga omnes, any new kind of

right that might be created must be constructed with absolute clarity, clearly defined

in its content, and in the limitations that it creates for the encumbered property, in

such a way that third parties can know and understand without difficulty the limita-

tions of the ownership that they may acquire. Moreover, due to the existence of the

Land Registry, the enforceability against future purchasers can only be granted if the

right has been registered in the Registry itself, and this can only be done if it has been

properly defined as set out above.

In any event, the special rights usually created which differ from those defined in the

law tend to fit in the most general or abstract cases of rights in rem, such as ease-

ments (that is, special limitations on the use of real estate established for the benefit

of another property or of a natural or legal person) or pre-emptive rights.

Real Property Law – Spain Report

For this reason, an important portion of the scientific doctrine tends to consider that,

although the Spanish system is numerus apertus in theory, in practice it is really nu-

merus clausus.

Anyway, limitations and special rights on real estate ownership are quite frequently

created, above all in the urban context, since the fact is that whenever there is a need

for them these rights are easily and effectively granted by notarial acts, as well as be-

ing literally transcribed in the Land Registry, which enormously facilitates their effi-

ciency.

There are numerous rights in rem or encumbrances that burden the use and enjoy-

ment of another’s real estate:

• Usufruct: According to Art. 467 of the Civil Code, “The usufruct gives the right to

enjoy another’s goods with the obligation of conserving its form and content, unless

otherwise authorized by its title of granting or by the law.”

That is, the usufruct gives the right to all of the fruits and utilities that property may

yield, be it movable or immovable. The only limitation is that the property must be

used in a way such that its value is not lost or reduced.

The duration of the usufruct is subject to important limitations: the law imposes that

when granted, it must last for a limited period of time, in order to avoid unlimited

temporal division of ownership rights. For this reason, if it is granted in favor of

various successive people, then these people must all be alive at the time; or if they

are nasciturus or concepturus, it may not be granted to more than two successive

generations within the same family. And if granted to a company or institution, it

cannot last for more than 30 years, although some exceptions do exist in the case of

usufructs formed by a public corporation in favor of another analogous entity.

The most frequent cases are those in the family context (inheritances, donations from

parents to children), where the usufruct is kept for the life of the donor, his husband

or wife, or some other person.

• Right of Use: This right is analogous to the usufruct, but with a more limited con-

tent. According to Art. 524 of the Civil Code, “The use gives the right to collect, of

the fruits of a thing belonging to someone else, those needed to cover the necessities

of the user and his family, even if the family grows larger (…)”.

This right, on the other hand, is non-transferable.

• Rights of Habitation: Again this right is analogous to the usufruct, on inhabitable

real estate, also with a more limited content. According to Art. 524 of the Civil

Code, “(…) Habitation gives to whoever has this right the ability to occupy in a

house the necessary portions for himself and for the members of his family”.

This is also a personal and non-transferable right.

• Easement: These are limitations imposed on the ownership of real estate, in favor

of other real estate (the so-called appurtenance easements) or in favor of one or sev-

eral persons (easements in gross): The Civil Code defines them in the following way:

Art. 530: “The easement is an encumbrance imposed on real estate to the benefit of

other real estate belonging to a different owner.

Real Property Law – Spain Report

other real estate belonging to a different owner.

The real estate in whose favor the easement is created is called dominant tenement;

the other one is called servient tenement.”

Art. 531: “Easements can also be established to the advantage of one or more per-

sons, or of a community, to whom the encumbered real estate does not belong .”

The main purpose of the easement is to allow for the greatest utilization of proper-

ties. The Civil Code regulates the most frequent types of easements (i.e. water chan-

neling, vehicle or pedestrian rights of way, dividing walls, access to light, views, and

the distance between buildings), although the granting of new types of easements

necessary for the use of real estate is frequent (numerus apertus).

Personal easements are much rarer, although there are some cases. For example, the

right in rem in favor of a family to use the balcony of an apartment to view bull

fights celebrated in the square of some town.

• Ground rent: This institution dates from the middle ages and has almost disap-

peared, but it is regulated by the Civil Code and the civil laws of some regions (men-

tioned above under 1.1).

In Spanish law, all mortgages are accessory: they cannot exist without a specific

main obligation guaranteed by the mortgage. The floating mortgage and the owner’s

mortgage, established up to a certain value in order to guarantee any future debt up to

this value, are not acceptable, the reason being that third parties wishing to acquire

ownership or other rights to the real estate should be able to know not only the value

or extent of the liabilities directly affecting the property, but also the character and

precise identification of whatever obligations it guarantees.

This is the so-called speciality principle. Nevertheless, in fact, ways are found to cre-

ate more general mortgages able to guarantee various future debts. These are based

on the current account contract, to which various obligations, correctly identified

upon creation of the contract, can be charged. What is guaranteed in this case is the

final balance or liquidation of the account on a specific date (or even earlier should

the debtor fail to comply with the agreed payment schedule).

Rents guaranteed by real estate are also frequent, and are easy to grant under Spanish

law:

- Through ground rents, as stated above (under 1.1), which date from medieval law

and are in fact based on the idea that the real estate produces rents, one part of which

goes to the beneficial owner and as a result creates an encumbrance on the real estate.

- Through the transfer of ownership of the real estate to another person in exchange

for the obligation to pay a rent during the life of the transferor, who gets the possibil-

ity erga omnes of recuperating his property whenever the rent is not paid.

- Through a mortgage meant to guarantee the periodic payment of a rent, such that in

the case of a default in payment, the mortgage would be foreclosed in order to cover

payments already made?, and remain in force, in assurance of the future payments.

Fundamentally with the call option, which is frequently agreed. It gives the right

Real Property Law – Spain Report

erga omnes to acquire ownership of the real estate by paying an amount previously

agreed upon and by giving the possible purchaser a limited period of time, no longer

than four years, to execute this right.

In sales with a deferred price, the defeasance clause is frequently used. It gives the

seller a right erga omnes to recuperate ownership of the sold real estate, in cases

where the amount to be paid later is never received.

1.4 Apartment Ownership (Condominiums)

The ownership of houses for apartments is regulated by the Law on Horizontal Prop-

erty of 21 July 1960 which has been modified by the Law dated 6th April 1999, in

order to bring up to date certain matters such as the procedures used to make deci-

sions relevant to the Community and more specifically on the obligations of apart-

ment owners in the building. Under this law, a similar system and set of regulations

can be used for private communities where both shared components (installations

and common streets) and exclusive ones (plots and houses, or buildings divided into

apartments) exist.

The legal statute on apartment property is based on the following fundamental prin-

ciples:

1. Each owner is the exclusive owner of his respective property (whether it is an

apartment, a store, a parking space, etc.)

2. Each property is assigned a title share or a percentage in the community which de-

fines its rights and obligations within that community. This title share is set up, by

agreement of the owners, in function of the area, value, use of common elements, etc.

of each property.

3. The plot belongs to the owners in the proportion defined by the title shares or per-

centages of their respective properties. Thus, if the building collapses, they would be

co-owners of the remaining plot in the accepted proportions.

4. The definition of the several independent properties, the common elements of the

building, as well as the title shares corresponding to each property, are set out in the

community’s statute or bylaws, which are usually established by the developer before

sale of the apartments. Afterwards, this statute can only be approved or modified by

the unanimous agreement of all of the owners. These bylaws can also regulate limita-

tions with respect to the use of the property (i.e. the prohibition against installing a

restaurant on the ground floor) and establish rules on the organization and admini-

stration of the community.

5. Some times, internal rules are also set up, by majority vote in the Meeting. They

compel all owners, and regulate the details of life together and the adequate use of

services and common things.

6. For building operation and maintenance, the community tends to act through three

organs: the General Meeting, or owners' meeting, where each votes according to his

community share or percentage; the President, executive and representative organ of

the community; and the Administrator, in charge of building maintenance and of

Real Property Law – Spain Report

community income and expenses.

There have also been recent developments in time sharing, regulated by the Law

dated 15 December 1998. In any event, its progress has not been particularly impor-

tant. It is limited to a few specific tourist areas, and even here remains infrequent. Its

regulation is distinctively concerned with consumer protection and ensuring proper

services and maintenance of the purchased property rights. This reveals that, in this

domain at least, obligation aspects are predominant over real estate aspects.

1.5 Building Lease (emphytéose – bail à construction/ Erbbaurecht)

Renting buildings is specially regulated by the Law on Lease of Urban Property (Ley

de Arrendamientos Urbanos) of 24 November 1994. For social reasons, renting regu-

lations have always fiercely protected the tenant, only becoming progressively liber-

alized from the year 1985 on.

In the renting of houses, the tenant has the right to remain in occupation, revising the

rent annually, for a minimum of 5 years, unless a longer period of time was agreed

upon. Moreover, at his death, family members that lived in the building have the

right to continue occupying the building.

In all rental agreements, unless otherwise agreed, in the case of the sale of the real es-

tate the tenant has the right to acquire the property according to the conditions agreed

upon with the buyer.

In theory, the rights of the tenant are not rights in rem or encumbrances, but purely

personal rights, and the property itself continues to belong to the landlord. However,

the effectiveness of these rights against third parties is so great that they are fre-

quently seen as a ius ad rem, or a tertium genus, between personal rights and encum-

brances. Whenever the property rented out for residential use is sold within the first

five years of the rental contract, the buyer must respect the contract until it comes to

an end. In other cases (that is, if the housing has been rented out for more than five

years, or if the property is used for something other than residential purposes), the

buyer need only respect the tenant’s rights if they are registered in the Land Registry.

1.6 The Public Law Context of Real Property Transactions

Some pre-emptive rights in favor of the public administration are being progressively

introduced in the sale of plots located in areas protected for their ecological interest.

These rights, being restrictions on legal ownership, are effective against anyone with

the same force as if they were true rights or encumbrances.

Another area in which very important restrictions on the transfer of property are

found is in so called Subsidized Housing (VPO). In these cases, in exchange for aid

received (such as plots sold at below market value, fiscal exemptions, and help for

paying off mortgage loans contracted for their purchase) very important limitations

are imposed on the rights of the buyer, especially as regards future transfer of the

property. The limitations vary according to the type of aid received, but they tend to

Real Property Law – Spain Report

consist in requiring the housing to be used solely as the habitual residence, the exis-

tence of an upper limit for prices in later sales of the housing (with serious sanctions

like the requirement of returning all of the aid received if these limitations are not re-

spected), prohibitions against selling the property within the first five years, and pre-

emptive and redemption rights for the public administration if sale takes place in the

first 10 or 15 years, etc.

This sort of housing is relatively common. Periodically, housing plans are drawn up

and a significant number of residences are financed for this purpose. The legal limita-

tions produce all of their effects erga omnes, with more force than a right in rem, be-

cause they are obligations imposed by law. However, the system generates certain

uncertainties because of the difficulty of knowing exactly what the system of obliga-

tions and limitations for each housing unit is. In any event, this is of limited impor-

tance, since to date the public administration has been far from rigorous in its control

of compliance with these legal obligations.

1.7 Brief Summary on "Real Property Law in Action"

The price of property has risen greatly is the last six years, to such an extent that fam-

ily debt has become clearly excessive in relation to available income. Nevertheless,

this is compensated in large measure by the recent low interest rates (it is not rare to

sign a loan with a Euribor rate plus half a percentage point, and the average may

probably be around Euribor plus one point) which have eased efforts to pay off these

mortgage loans.

There are multiple causes of the rise in prices. Perhaps the most relevant can be sum-

marized as follows:

- Scarcity of land due to control of urban development by Town Halls, inefficiently

administered because of problems of excessive control and bureaucracy and used to

obtain important sources of finance.

- Rapid and sustained economic growth that has caused important increases in

available income, giving rise to large price increases (as in 1986-1992 and in 1996-

2004).

- Notable flexibility in the rise of real estate prices because of the strong public pref-

erence for ownership over renting and the decrease in interest rates over the period

1994-2003 making the paying off of mortgage loans much easier.

Nevertheless, it must be noted that there are a large number of empty housing units

that are not put up for sale on the market. The cause is the frequent recourse to real

estate investment with speculative ends or in view of long term savings.

Mortgages have a fundamental role in financing the purchase of real estate. More

than 80% of new family housing can be estimated to have been financed through

mortgage loans. The main cause is surely that in Spain there is an especially large

and competitive mortgage loan market, as we shall later see.

In real estate acquisitions the public notary plays a primary role, being present at in

almost all instances; he draws up the contract and checks the encumbrances of the

Real Property Law – Spain Report

real estate, as we will see below. Alongside of him, the Land Registry is fundamen-

tal; as it ensures that any possible encumbrances or rights on the real estate that are

not duly registered do not affect the buyer.

Frequently real estate agents play a commercial role, putting the two sides of the

market in contact, the offer and the demand.

The cases of legal conflict in real estate matters are very scarce. The reason is that

the mechanism of preventive legal security operates reasonably well, with the public

notary who draws up the contracts and ensures the absence of encumbrances on the

real estate and the Land Registry, which informs of any effective encumbrances. The

proof of this is that a market for insurance to protect against any possible cases of

loss of acquired property has not developed, because so far it has not been necessary,

and that insurance for public notary liabilities comes at very little cost (perhaps 15 

per operation).

Access to Courts in order to defend property is guaranteed in conditions of reason-

able equity. Nevertheless, the cost and the delay of the legal solutions make them

rather inefficient. Despite this, no alternative resolution mechanisms have been de-

veloped in any important measure.

There aren't important problems of uncertainty or appearance of encumbrances or

limitations on the rights to property that is acquired, with one exception: urbanism,

owing to the fact that in areas under urban development it is frequently impossible to

obtain from the current administration precise and detailed information about the

property. Sometimes, in the process of urban development, solutions end up being

produced that are not entirely fair, excessively benefiting certain interested parties in

comparison to others in the same or nearby areas.

Real Property Law – Spain Report

2. Land Registration

2.1 Organisation

The statutory regulation of the Land Registry is contained in the Ley Hipotecaria

(LH) of 8 February 1946 and in the Reglamento Hipotecario (RH) of 14 February

1947. Both have been subject to several modifications in order to adopt them to new

institutions and rules on real estate property. Recently an important Royal Decree of

4 July 1997 concerning the registration of urban conduct was added.

The legal registration of land and property in Spain is carried out by the Land Regis-

try, when rights that are acquired and transferred concerning distinct real estates are

registered. The Registrar is in charge of the Land Registry: he is a legally certified

government employee who is functionally autonomous and gets paid fees for each

registration.

Next to the Land Registry, there is the Cadastre, which is a descriptive database of

the physical layout of the distinct properties. Its goal is fundamentally fiscal: it exists

in order to make real estate evaluations and calculate the appropriate taxes. It has

very little legal status and frequently the title of the properties in the Cadastre do not

match up with the real ones.

The Land Registry is divided into some one thousand independent Registries, each

corresponding to a specific portion of Spanish territory. At the head of each Registry

there is a Registrar who is a qualified government employee, having attained the po-

sition only after passing a very hard entrance exam. The Registrars are organized into

a National Official Association, although this also depends on the Ministry of Justice.

Each Registrar works in an autonomous way, and decides independently whether or

not, according to the law, he must register a real estate transaction. Nevertheless, his

decisions can be questioned before an organ of the Ministry of Justice, although this

system is highly inefficient, making the Registrar’s decision difficult to oppose or

modify. This provokes serious inefficiencies in the real estate market, occasionally

justified by the legal guarantees that the system affords, although many could likely

be avoided without any affect on this legal guarantee. The problem is that any change

to the statute of the Registrars of deeds is always very difficult to make.

In terms of area, between 75 and 90% of real estate property is registered. However,

in terms of value more than 95% of the property is registered. All of the valuable

properties are registered, and only marginal properties whose minor value does not

justify the cost of the registration remain unregistered.

2.2 Contents of Registration

The Land Registry is organized in books in which each property receives a consecu-

tive number. The first registration occurs when a transfer of the real estate takes

place, and certain circumstances are met that make it possible to register the transfer

in the Registry (chiefly, the rights of the transferor and the existence of the real estate

in the Cadastre must both be proved). After this, the rights over the same plot are reg-

Real Property Law – Spain Report

istered in successive entries, whether it be a transfer of the property or other limited

rights that burden it. Additionally, the modifications of the description of the real es-

tate are also registered, i.e. modifications to the area or boundaries, divisions, new

constructions, etc.

With this system the Land Registry has a great advantage: it collects with great preci-

sion the legal situation of any particular property, since any encumbrances that might

successfully affect it must appear on the same plot-page. Its main inconvenience

from the point of view of the information it offers is that traditionally the physical

descriptions of properties that were accepted by the Registry were those written by

the owners themselves, and they were very seldom accurate or complete. For this

reason, the Registry does not give any trustworthy information on the physical exis-

tence of the real estates, nor does it offer any guarantees. Thus, although it might

state the sale of a terrain of 10,000 sq. mt., there can be no guarantee that this is the

actual area of the purchased property. To be sure of the physical description, it is

necessary to consult the Cadastre.

Currently, though, for any new entry to be possible, the law requires proof of the

physical data of the real estate, with a certificate from the Cadastre or from an archi-

tect.

2.3 Registration Procedure

The registration application does not exist in form of a particular document. It is

enough to bring a document to the Land Registry, and at that time, it must be written

into a daily log-book, with an indication of its date and entrance order. This indica-

tion is of the greatest importance, since its order decides the priority of rights due to

the various titles that may be registered in the Land Registry.

The registration application can be drawn up by anyone who has an interest in it or

by anyone who manages such issues: the public notary, a lawyer, or an agent. The

Law of 24 December 2001 states that the public document can be remitted by the no-

tary to the Registrar with an electronic signature and, that once the registration is

done, the Registrar must send certification of the registration back to the notary. Af-

ter this, the notary writes out the document as well as the Registrar’s entry on paper,

puts his signature to it and returns it to the interested party. The system can be very

convenient as not only does it save time for the user of the legal security service, but

it also ensures that as soon as the document is signed it enters the Land Registry,

avoiding the risk that other contradictory documents are presented. For this reason,

when the system is functioning, surely the most frequent registration procedure will

be that the notary, as soon as he signs the document, will send the electronic docu-

ment to the Registry. However, this system has not yet been put into practice for rea-

sons that I feel are unjustified, such as a lack of agreement on the procedure of dis-

patch of electronic public documents to the Registry (which needs to be legally de-

fined).

The Registrar has the duty to register the document in the space of 15 days from the

time the document is presented. However, frequently this time frame is not respected

and it may take up to a month, or even more, depending on the Registry.

Real Property Law – Spain Report

The decision not to register the document may be based on the following: the trans-

feror is not the title holder of the rights to be transferred according to the Land Regis-

try, the document presented is not a true public document (signed and authorized by

a notary, a judge, or an administrative authority within his competence), or the con-

tent of the contract is null.

In cases where the Registrar decides not to register the document, he must notify his

decision to whoever presented the document to the Land Registry, as well as to the

notary, judge or government employee that authorized the document.

Thus, it is said in the Ley Hipotecaria:

“Art. 18.1. The Registrars will determine under their responsibility the formal legal-

ity of documents of any type, in whose virtue the registration is requested, as well as

the capacity of the grantors and the validity of the acts of disposal contained in public

documents, according to them and to the contents of the Land Registry.”

This system has in fact operated very well historically, because it has generated re-

markable legal security and the number of legal conflicts generated in these matters

is minimal. Lately, however, a process of strengthening the control of the Registrar

due to the risk aversion of professionals (who have no economic incentive when tak-

ing a risky decision) and an attempt to strengthen the legal concept of the Land Reg-

istry have jammed up real estate traffic all too often for reasons that do not appear to

have justification. For example, when the notary has written that something, such as

the concession of an administrative license or a power of attorney meant for the act,

has been proved to him, it is not uncommon that the Registrar requires it to be proved

again in the register, entailing paralysis of the process and ensuing costs.

2.4 Access to information

“Art. 221 L.H.: The Land Registers will be public for those who have a special in-

terest in finding out the state of the registered properties or encumbrances. Interest is

presumed in the case of any authority, employee or public servant that acts according

to his office or duty.”

All of the entries of the Land Registry are made on paper, although electronic consul-

tation is possible by sending an application that is answered by e-mail the next day.

The Law of 24 December 2001 also foresaw the possibility of consulting the content

of the Land Registry online, but the development of this system has also run into ob-

stacles.

The interest of the individual requesting information is checked by the Registrar.

There is no doubt that an individual has a rightful interest in obtaining information on

the content of the Land Registry if –whether he acts for himself or on behalf of

someone else- he intends to buy or seize the property. In practice, however, the inter-

est of the individual requesting information is not very tightly controlled, as the sim-

ple claim that the information is necessary for one of these purposes shall be enough.

A reporter attempting to obtain information about someone’s estate does not have a

legal interest, as the citizen’s right to privacy is most important. Nevertheless, as in

Real Property Law – Spain Report

practice it is not possible to judge the intentions of someone asking for information,

this control is not usually effective.

Usually, the search for specific real estate can only be carried out by the number that

the real estate was registered under, which means that it is necessary to know its reg-

ister data. Additionally, there is a persons file where in theory it would be possible to

investigate what properties or rights someone owns in the area corresponding to a

particular Register. However, these files have been quite incomplete for many years,

so such a consultation is highly likely to be misguiding.

2.5 Substantive Effects of the Registration

The principles that regulate the effect of registration are the following:

• Registration is never constitutive: the property or rights over real estates are ac-

quired without the need to register them. Registration is voluntary. (There are very

specific exceptions, such as mortgages, for which registration is constitutive, al-

though the meaning of this rule is debatable.)

• Registration does not validate the defects or invalidity of the document that is reg-

istered. If the registered contract was null and void, this can always be declared in

court.

• However, registration does protect the buyer. If the title was void, but the real es-

tate was nonetheless sold, the buyer who consults the Land Registry and checks the

documents is protected; so that even if the transferor’s contract may be nullified, his

rights will not be affected.

• Preference among the successive buyers depends on the order in which their re-

spective titles were entered in the Land Registry.

• Registration creates the presumption that whoever registers a particular property

holds and owns it.

• Specialty principle: This principle, although not explicitly formulated in law, im-

plies the expectation that the various features and elements of the encumbrances pub-

lished in the Land Registry are expressed clearly and in full, so that any third parties

contracting on the basis of Registry information are able to accurately grasp the real

legal situation of the specific property.

I now transcribe the principle articles of the Ley Hipotecaria on this question:

Art. 17

Whenever a declarative title or a conveyance concerning real estate or encumbrances

on real estate has been definitely or provisionally registered, no other one of the same

or previous date that opposes it can be registered or annotated.

Art. 38.1

For all legal effects, it shall be presumed that any registered rights in rem exist and

Real Property Law – Spain Report

belong to their owner in the way defined by the Register. It shall as well be presumed

that whoever has a property or encumbrance under his name, has the possession of it.

2.6 Rank and Priority Notice

As it is made clear in the articles that have been transcribed from the Ley Hipotecaria

and from the principles mentioned above, the rank among diverse rights is deter-

mined by the date and hour of presentation of each of the documents at the Land

Registry.

In principle, according to the Spanish law, it is not possible to ensure a future con-

tract by reserving a registration rank in the abstract.

In order to guarantee to the buyer that he will acquire the real estate without encum-

brances a system that is not based on the reservation of registration rank, but on in-

formation is used. The notary asks the Registrar to inform him about any encum-

brances that might exist. The application is sent by fax (although it should soon be

possible to do this using an official electronic signature and thereby attaining direct

access to the content of the Land Registry book). The Registrar, in the next 3 days,

sends fax in reply informing the notary about any encumbrances he finds on the real

estate; and for the next nine days he continues to inform the notary about any docu-

ments that might have been presented at the Register referring to the same real estate,

as well as about any other information that other Notaries might have requested (in

order to prevent the real estate from being sold twice on the same day before two dif-

ferent notaries).

It is possible to ensure some special preference in rank by registering a ius ad rem,

which according to the specialty principle of registration must be properly portrayed:

all the distinct elements of this right published by the Land Registry must appear

clearly described. These elements are, most importantly, the content of the right, its

amount, the person in whose favor it is being granted, etc.

A particular case of registration is the so-called precautionary or preventive annota-

tion, normally of a ius ad rem, which is intended to protect a right that is being

formed, but which is still incomplete, for formal or material reasons. They are used

in cases such as the claim of a right before the court, the seizure of a property to

cover a debt of a specific amount, or a conveyance that cannot be registered because

of some defect that can still be corrected. Caveats have a limited time span of several

months depending on their type.

Real Property Law – Spain Report

3. Sale of Real Estate among Private Persons (consumers)

3.1 Procedure in general

The main steps in the sale of real estate are the following:

The two parties, buyer and seller, go to a notary that they freely choose. If they have

employed the services of a bank to finance the acquisition, frequently the bank will

recommend a notary with whom it routinely works, although it is the consumer who

always has the ultimate right to choose the notary. This right is not always respected

by businessmen and professionals, creating problems as to the quality of notarial ad-

vice for the consumer.

The document is drawn up according to the will expressed by the parties to the no-

tary, and containing the specific agreements (on property transfer, delivery of posses-

sions, costs of sale, defects in the real estate, guarantees, etc.) made by the parties.

Quite frequently, questions arise at the time of signing which will require modifica-

tions to the document in order to attend to the requirements of the contract. The price

tends to be paid in full at the time of the signing. The system of deposits held by the

public notary is not used because the system of information dispatch by fax to the

Land Registry is quite secure. Especially, when consulting the Registry and sending

the signed documents can be taken care of online, security problems will be minimal

and the reservation of handing over the price will be unnecessary.

3.6.1. Time frame

The preparation of the document before the notary, along with the verification of the

registration circumstances of the real estate, and therefore the payment and the trans-

fer of the property is done on average within a time frame of 3-4 days. Nevertheless,

when the process is urgent, and provided the Land Registry sends the information

about the encumbrances of the real estate (something that tends to be achieved by the

next day), the document can be signed the day after it is drawn up by the notary, or

even on the same day, without any problem.

3.2 Real Estate Sales Contract

In Spanish law, the transfer of property is carried out following the Roman system of

titulus and modus: The valid contract of transferral of the property, together with the

delivery of possession (or other formalities such as the completion of a notarial act),

transfers the property in favor of the buyer.

Registration in the Land Registry, as stated above, does not bring about the transfer

of the property, nor does the validation of possible defects in the transfer contract.

However, it does protect the buyer, if he is in good faith and has paid a true price for

the purchase, against possible defects in the transfer rights.

The registration can only be done by notarial act (or in some special cases, by a judi-

cial or an administrative document). If the transfer contract is not in the form of a no-

Real Property Law – Spain Report

tarial act, but is contained in a private document, it cannot be registered. However,

either of the two parties has the right to oblige the other to convert it into a notarial

act by signing the document before a notary. If the other party does not comply, a

judge may be petitioned to order its registration, once he has checked that the con-

tract was effectively approved and signed by both parties.

The deeds, in notarial acts, are always drawn up by the notary. In many cases though,

a preliminary contract is agreed, normally drawn up by the lawyer or the real estate

agent involved in the transaction.

There is no typical sales contract, because contracts are drawn up by the notary ac-

cording to the specific requirements of each particular case.

However, contracts drawn up by notaries do share a very important part of their con-

tent. In each of them, the notary undertakes a significant number of controls and ad-

ministrative acts on behalf of the parties or the public administration, and these are

always repeated.

For instance, several controls are made in all conveyances, such as the verification of

the existence of encumbrances at the Land Registry, the seller’s declaration that the

real estate is not rented out, nor subject to the consent of his or her spouse to sale, the

possible existence of debts to the building community of owners (condominiums),

the declaration of the conveyance to the Cadastre so that the real estate is put under

the buyer’s name, the payment of taxes generated by the contract, etc.

Moreover, the notary having drawn up the contract and being a public servant, has a

duty to inform the public administration of certain data that may be important to pub-

lic interests. He sends a monthly list of all transfers to the Cadastre so that its data-

bases can be automatically updated, he sends to each tax collecting office a list of the

transactions that should require tax payments, and he sends to the Ministry of Interior

information regarding transactions that might, under certain conditions, be suspected

to involve money laundering, etc.

Alongside this, a new process allowing the notary to pay the relevant taxes online at

the time of signing the contract is slowly being put in place. This will entail enor-

mous savings for the contracting parties. Moreover, it has important value for the

public administration, as it would allow for control of information on real estate

transactions, for statistical and tax collection purposes.

3.3 Transfer of Ownership and Payment

Transfer of ownership takes place according to the Roman system of titulus (a valid

and consistent contract that generates the transferral of the object) and modus (the

physical delivery of possession or of something representative of it, or the granting of

the public deed or notarial act, which is legally equivalent to the transfer of posses-

sion).

The obligation to pay the price is merely an effect of the contract. Non-compliance

with payment clauses does not make the transfer of ownership ineffective inter

partes or erga omnes. However, the lack of payment of the deferred part allows the

Real Property Law – Spain Report

seller to dissolve the contract and recover ownership of the object sold, as long as it

is still owned by the buyer (that is, with inter partes effects, but not erga omnes).

Anyway, it must be noted that very frequently the delayed payment is secured by

means of a so called condición resolutoria explícita, or expressed resolving cause.

Art. 1124 C.c.: The power to dissolve the obligation is implicit in any reciprocal ob-

ligation, in case one of the parties does not comply with his obligation.

The affected party can opt for compliance or for dissolution of the obligation, with a

right to compensation for any damages, and in either case with a payment of interest.

The party can also demand dissolution, even after requesting compliance, when

compliance becomes impossible.

The Court will order the claimed dissolution as long as there is no reason justifying

a term.

This must be understood without contravention of the rights of a third party pur-

chaser, according to articles 1295, 1298 C.c. and the Ley Hipotecaria.

Art. 1504 C.c.: In the sale of real estate property, even when the right of dissolution

of the contract has been stipulated in the case of a default on price payments, the

buyer can pay even after the term runs out, as long as he hasn’t been required oth-

erwise by notary or Judicial act. Once the requirement is made, the judge cannot

concede another term.

Art. 11 L.H.: The statement (in the Land Registry) of a deferment of payment will not

imply consequences affecting third parties, unless it is guaranteed by mortgage or by

a right to resolve, expressly agreed upon in the case of payment default. In either

case, if the deferred payment refers to the transfer of two or more properties, it will

be distributed between both of them.

As we have seen, the price is usually paid in full at the same time that transfer of

ownership takes place. The rights of both parties are ensured, as long as the informa-

tion from the Land Registry is available at that moment (which is always the case, or

else the deed is postponed). Consequently, payment is usually made directly by the

buyer to the seller.

When payment is financed through a mortgage loan, both notarial acts (the deed of

sale and of mortgage) are usually signed in the same act, and the bank pays the loan

in that moment, even if the mortgage is yet to be registered.

The non-existence of serious risks, thanks to the system of information from the

Land Registry and the immediate reporting to the Land Registry of notarial acts that

have been signed, removes any difficulties for the interested parties, the buyer or, the

bank to immediately deliver the money. For this reason, insurance to protect the

buyer in the face of risks stemming from purchase is non-existent.

In principle, the obligation to pay the deferred price does not have any stronger guar-

antees or effects than any other payment obligation.

Nevertheless, some advantages are frequently available:

• As the sale is normally formalized by a notarial act, the obligations resulting from

Real Property Law – Spain Report

it are enforceable directly before the Courts.

• As we have seen, Art. 1124 C.c. allows the seller to dissolve the contract, after

which he can recover ownership of the sold object if it still belongs to the buyer.

• However, some special form of security in order to protect the deferred payment is

frequently established: it can be a mortgage, although more frequently the so called

condición resolutoria explícita, or expressed resolving cause (or condition), is used.

The latter allows the seller, if he has not been paid, to recover ownership of the prop-

erty with true erga omnes effectiveness. When both parties have agreed to add this

erga omnes effect to the resolving cause (or condition), it shall be literally registered

in the Land Registry, and consequently any other buyer of the property will not be

protected by Art. 34 LH. In this way, recovery of ownership can occur automatically:

it is enough for the seller to request via a notary that the buyer pays the outstanding

amount. He then shall be entitled to register the property back under his name if the

buyer has not paid, or has not opposed the resolution claiming that the buyer has not

complied with his obligations (for example, because of defects appearing in the ob-

ject sold).

It is common practice to effect formal transfer of possession (with the handing over

of keys) to the buyer at the same time as the signing of the notarial act.

Some times, transfer can be postponed by a few days so that the seller can remove

his belongings from the property. Transfer of possession usually does not create

problems, although, in order to prevent any, it is common to agree on a penal clause

that forces the seller to pay the buyer an important amount of money for each day

transfer is delayed.

3.4 Seller’s Title

Normally, the seller presents to the notary his own notarial act, which is the title that

proves that he acquired the property on a specific date. If this deed is lost, a new

copy can be easily obtained from the notary that authorized the original sale, as the

notary always keeps in his official file the original documents signed by both parties

(and he always issues copies, officially certified, of this documents).

It is not necessary for the notary to confirm the validity of the chain of previous titles

–during the period of prescription- since, although the registration in the Land Regis-

try is not constitutive nor does it validate defects on titles, it does protect the good

faith buyer against possible cancellations of his transferor's title (Art. 34 LH).

The notary confirms the property’s situation and encumbrances at the Land Registry

in order to ensure that the property stills belongs to the seller and that there are no

subsequent charges. This is done by fax via the information request system described

earlier.

Frequently there are other previous charges that have to be cancelled before register-

ing the current purchase or at the same time: a usufruct in favor of another person, a

mortgage securing a previous loan, etc.

Real Property Law – Spain Report

If the charge can only be cancelled with the consent of its holder (for example, with

the waiver of the usufruct if the individual is still alive, or with a deed signed by the

creditor acknowledging that the loan has been paid, or by abstract consent to the can-

cellation of the mortgage) it is normal to require notarial deeds to be signed at the

time of the sale.

In any event, in cases of mortgage cancellations, banks tend to impose their own law

and on many occasions refuse to be present at this act. In this case, the buyer fre-

quently agrees to sign the sale on the condition that he receives a certificate from the

bank indicating the quantity necessary to cancel the debt; he retains this amount, plus

the cancellation costs, and he pays the debt himself, while the creditor bank signs the

notarial act of mortgage cancellation later. The system is not very secure, as there

may be errors in the bank certificate, and the certificate itself is not a document with

sufficient formal guarantees. Nevertheless, it is the only available solution in many

cases as there is no possibility of obtaining anything else.

We have already seen that cases of legal conflict in real estate matters are very rare.

The reason is that the mechanism of preventive legal security functions reasonably

well: the notary draws up the deed and controls the existence of charges on the prop-

erty, and the Land Registry reports any possible encumbrances.

For this reason, no insurance market has developed protecting against the risk of loss

of acquired property, since there has been no need for one. In the event that informa-

tion given to the buyer is incorrect due to an error by a notary or Registrar, or if the

notarial act has errors or defects that impede its registration and result in losses to the

purchaser, the notary and the Registrar could be liable.

However, the risk of liability is very small, which is why the notary’s insurance for

civil liability has such a low cost (about 15  per deed).

As has been stated, when renting a dwelling, the tenant has the right to remain there,

revising the rent yearly, for a minimum of 5 years, unless a longer period of time was

agreed upon. Moreover, on his death, the family members that lived in the same

building have the right to continue living there.

If the property rented for housing was sold within the first five years of the signing of

contract, the buyer must respect the lease agreement until the term elapses.

If it has been rented out for more than five years, or if the property was to be used for

something other than residential purposes, the buyer need only respect the rental

agreement if the tenant’s rights are registered in the Land Registry. If this is not the

case, he has the right to terminate the rental agreement.

In all rentals, unless otherwise agreed, if the property is to be sold the tenant has the

right to acquire it under the same conditions agreed by the buyer. The seller must no-

tify him of the intention to transfer the property and the conditions of sale. The tenant

has 30 days to decide whether to buy it under the same conditions, after which the

originally planned sale can be carried out. However, if this notice is not given, or if

the sale is carried out differently than planned, the tenant, for the 60 days following

the compulsory notice of the conditions of sale, once it has been formalized, through

delivery by the notary of a copy of the notarial act, has the right to undo the sale and

acquire the property under the conditions that were finally agreed upon.

Real Property Law – Spain Report

In any event, tenant rights cause few problems in practice, since the tenant always

occupies and possesses the property; and normally, the buyer has visited and exam-

ined it before deciding to buy it, which allows him to be aware of the tenant’s exis-

tence. The notary always asks if any tenancy exists, since for the sale’s registration at

the Land Registry the seller must declare in the notarial act that the property is not

rented; or if it is, a notary must notify the tenant, so that he can decide whether or not

to exercise his right to acquire the property.

3.5 Defects and Warranties

• If the buyer’s rights are affected by a defect in the seller’s title deed, or by some ig-

nored charge, the seller will be liable in the civil courts for any losses caused, and the

buyer, if the entire object bought or the most important part of it has been denied to

him, should have the right to cancel the contract and to demand that the seller return

the amount paid and the costs that the sale incurred.

If there has been negligence on behalf of the notary who prepared the notarial acts or

the Registrar who reported the state of charges, they will also be liable (although on

occasion the responsibility of the Registrar has been declared inexistent if his acts

were limited to sending information by fax and not to officially certifying it. How-

ever, this doctrine seems unlikely to hold in the future because professional responsi-

bility for erroneous information given to citizens should without doubt exist).

• If there are defects in the quality of the object, in the case of a very old residence,

normally it is agreed that the buyer acquire it in its current state and accept any pos-

sible defects due to its age. It would be useful to hand over a technical report to the

buyer on the state of the house, consumption of energy, etc. However, for the mo-

ment, nothing of this sort is done, and consequently all the risk of bad information

falls on the buyer. Certainly, if the buyer could prove that bad faith on the part of the

seller existed, he would have the right to compensation for the damages incurred.

However, as this proof tends to be difficult, it is on the buyer that most of these risks

fall, despite the fact that he is the one with the least information about the actual state

of the property.

If the property is sold by a developer, or sold in the years following the completion

of construction, the situation is distinct. We will consider this issue further under the

relevant section below.

• Constraints stemming from urban rights or environmental regulations tend to be

difficult to discover, because the authorities are not always able to issue exact reports

in due time. In these matters, the agreements will be followed, and if nothing was

agreed, it is understood that the buyer acquires the property with the corresponding

legal regime, although this implies constraints on his powers. However, if it is proven

that the seller acted in bad faith by withholding relevant information, the buyer can

receive compensation for losses, or even the dissolution of the contract if the loss is

essential. The problem remains proving bad faith.

As regards the scope of caveat emptor, see the information on consumer protection.

Even if the property has been sold, the buyer shall be liable for certain previous

Real Property Law – Spain Report

debts, such as taxes that directly encumber it or expenses from condominiums that

affect the building or common services, but not for costs pertaining to other services

or supplies.

• In tax matters, the buyer is liable for taxes due over the past 2 to 5 years, if the

seller has not paid them. Normally, proof that these taxes have been paid is given by

presenting the annual receipts. In any event, the Town Council can certify if the tax

has been paid, or how much is due from unpaid taxes. And we can reasonably expect

that in a few years time most of the Town Councils will be able to issue this certifi-

cate to the notary online, and accept payment of these taxes in the same way, by

means of a computer platform that the General Notaries’ Council is developing.

It is more difficult to provide the buyer with guarantees that no liabilities for other

types of taxes encumbering the property exist, such as those involved in the transfers

by sale or by inheritance that have been carried out over the last 5 years. In this case,

the payment of taxes is easily confirmed as it appears on the seller’s title deed (notar-

ial act). The problem is that, since the authorities can re-evaluate the settlement of

these taxes as when it is considered that the object was worth more than declared and

demand an additional amount, the buyer has no way to find out whether or not this

may happen.

• The property is also liable for the expenses agreed under a building’s condominium

statute, for the current and previous year. The standard practice is that the seller de-

livers a report from the administrator of the condominium indicating whether or not

there are any outstanding charges. The notary must require this report unless the

buyer expressly waives it.

3.6 Administrative Permits and Restrictions

Requirements of permits to sell property are very rare in Spanish law. Only the fol-

lowing exist:

- In certain regions protected for their ecological value, in accordance with the regu-

lations of the respective region, a right of previous acquisition in favor of the public

administration of the respective autonomous region tends to be established.

- In areas of military interest, such as islands and certain costal areas, the purchase of

lands by foreigners not belonging to the European Community requires previous

military authorization.

- In some particular cases of foreign investments in real estate, when done by citizens

who are not members of the EU, they must make a previous or subsequent declara-

tion to the Ministry or Economy, for statistical and tax control purposes.

- In the purchase of some Subsidized Housings (VPO) within the first 5 to 10 years

after its first acquisition.

Permits for certain preparatory procedures involved in a sale are more important.

Any acts having an urban effect, such as the division of rustic or urban plots and the

written declaration of the construction of a building, require previous licensing by the

Real Property Law – Spain Report

corresponding Town Council. The notary is not usually required to attain this, but he

does ensure that it was effectively given, since without it, he cannot sign the corre-

sponding deed (nor can it be registered).

As we said, administrative authorization is necessary for the acquisition of some real

estate property, such as property located in ecologically protected areas, in areas of

military interest, and Subsidized Housing property (VPO).

If previous administrative authorization is required form some act, the notary must

ensure that it has been given and if not, he must refuse to authorize the deed.

3.7 Transfer Costs

Estimation of the costs of conveyancing in Spain

Conveyance NOTARY PR.REGISTER TAX

75.000  240  156  5.250 

100.000  350  210  7000 

300.000  450  270  2100

Mortgage NOTARY PR.REGISTER TAX

75.000  300  195  600 

100.000  470  285  2.000 

500.000  575  345  4.000 

The tax incurred by real estate transactions depends on the region.

Normally, it is 7% of the value of the property. This is the value stated in the notarial

act. However, if the administration considers that the real value, calculated according

to certain objective criteria, is greater, it will demand that the difference be paid. The

majority of the regions offer the possibility of asking in advance what the estimated

real value of the property is. And, although there are differences, normally the esti-

mated value is around 70-80% of the market price.

Along with the former, in sales of urban real estate another tax exists, burdening the

supposed increase in the value of the plot. Legally it must be paid by the seller and its

cost depends on the time elapsed since the seller bought the property.

Many purchases are financed with mortgages or other securities constructed as en-

cumbrances. The granting of this land charge is subject to a tax which in the majority

of regions is 1% of the value of the secured amount (or some 1.5-2% of the loan).

This must be criticized because of the severe distortions it generates in markets. It

seems acceptable to burden with a tax effective conveyances, which in themselves

Real Property Law – Spain Report

constitute or disclose a source of wealth. However, it does not seem correct to burden

operations that have no other ends than the financing of the conveyance.

If some of the above taxes have not been paid, it is not possible to register the trans-

fer at the Land Registry.

On some occasions, the payment of taxes is entrusted to the notary. Other times, pro-

fessionals specialized in this type of procedure (agents) are commissioned to deal

with them. The notary also collaborates with the administration in a very important

way, because every month he sends a list of the acts he has authorized that are sub-

ject to taxation, in order to facilitate the control of the corresponding payments. It

seems inevitable that as the online tax payment system is developed, the notary will

be in charge of such payments as he will be able to make them at the lowest cost.

The involvement of real estate agents is very common. They are present in perhaps

25-50% of transactions.

They receive a commission that is freely agreed upon with the seller, as he is the one

who will pay it. This commission tends to be from 3-6%.

3.8 Buyer’s Mortgage

Very frequently, the buyer finances a part of the price (up to 80%) through a mort-

gage.

As was stated above, when the payment is financed through a mortgage loan, both

the notarial acts of sale and of mortgage are normally signed at the same time. The

bank therefore pays the loan amount at this time, even if the mortgage has not yet

been registered.

The non-existence of serious risks thanks to the information system of the Land Reg-

istries and the immediate report by the notary stating that the deeds have been signed

removes any important security problems for the buyer and the bank, and nearly al-

ways they agree to the immediate payment of the price. For this reason, insurance

guaranteeing the buyer against any risks stemming from the sale is non-existent.

In case there are previous mortgages which must be cancelled, it is desirable that a

representative of the bank that granted the initial loan be present at the signing, so

that he can collect the amount left to be paid and cancel the mortgage loan. But if the

bank is not present at the time, which happens quite regularly, the buyer keeps the

money or hands it over to the bank advisor who grants the new loan. The notarial act

cancelling the original mortgage is then signed at some later date. This, at least in

theory, can be risky for the buyer and his lender, although I haven’t seen cases where

problems have actually arisen.

Real Property Law – Spain Report

4. Special Problems concerning the Sale of Real Estate (Cases)

4.1 The Conclusion of the Contract

The contract may be a simple promise to conclude a future contract, which forces the

end of negotiations and the formalization of a definitive contract of sale, or a ‘buying

and selling’ promise, in which both parties are obliged immediately to carry out the

sale if the other party so decides at any moment.

However, it is common practice, for both parties to sign a real sales contract once

they have reached agreement as to the sale of the property, although this is a private

document, which partly limits its effects. As we stated before, this private contract

(and, at least in theory, verbal contracts too, supposing problems of proof could be

overcome) is enough for the transfer of ownership transfer as long as it is accompa-

nied by the transfer of possession or by some formality that substitutes for such trans-

fer, as the notarial act.

But the private contract has limited effects, in that it cannot certify the authenticity of

the signatures or the validity of the wilful statements therein. The notarial act does

prove these matters, as the notary, acting as a public official as well as a professional

adviser, must find out what the true will of the parties is, ensure that it conforms to

legal standards, refusing its signature if illegal, draw up the contract in accordance

with the law, and confirm the identities of the parties who sign it in his presence.

For these reasons, a private contract cannot be registered directly in the Land Regis-

try, nor is it directly enforceable in court. But it does give the right to either of the

parties who signed it to require that the other make it public and ratify it before a no-

tary. If this wish is not complied with, the contract may be taken to a judge who,

proving its authenticity and validating the wilful statements made in it, can either or-

der the other party to go to the notary and sign the contract, or can sign it on his be-

half, declaring him to be in default. The judge can also plainly declare in his judg-

ment that the property belongs to the buyer by virtue of the contract and of posses-

sion. In all of these cases, the acquisition can then be registered in the Land Registry.

4.2 Seller’s title

If C acquired from B a property in good faith (that is, unaware of the invalidity of

B’s deed) and B’s purchase was registered in the Land Registry, C’s purchase would

be protected, producing a true adquisitio a non domino.

But otherwise, that is if B’s contract of acquisition is invalid, and he hasn’t sold his

property, B’s acquisition would not be consummated, since a null contract is not ca-

pable of transferring ownership, even if accompanied by the modus: an abstract busi-

ness transfer does not exist.

The defects of the deeds that are indicated in the questionnaire, nevertheless, must be

differentiated, since not all of them cause the deed’s nullity.

Real Property Law – Spain Report

• Form is never essential in Spanish law. Consequently, an error of form, as we just

said, can only cause certain effects such as the lack of a direct proof of its validity or

the impossibility of registering the sale, but it cannot impede transfer of the owner-

ship.

• The lack of legal capacity of the seller, on the other hand, makes the contract non-

existent, as his wilful statement will be null. For this reason, the transfer of owner-

ship to B cannot be carried out, and C cannot acquire the property from him, except

in the said cases of adquisitio a non domino (thanks to the protection granted by the

Land Registry).

• Lack of administrative permits can have one of two effects, depending on the legis-

lation that regulates it: either, because it is a procedure prohibited by law, it is null

(and therefore, B never acquired the property, nor in principle can C later acquire it),

or a sanction (such as a fine) is imposed on whoever did not follow the legal obliga-

tion, in which case C can acquire the property without any problems.

As stated above, if B acquired a property in good faith (that is, unaware of the inva-

lidity of A’s deed) and A’s property was registered in the Land Registry, B’s pur-

chase would be protected, producing an adquisitio a non domino.

In the case of claim for ordinary credit, the principle of universal patrimonial liability

is applied. (Art. 1911 C.c.: For the fulfilment of his obligations, the debtor is re-

sponsible with all of his present or future assets.) This entails that if the property has

been sold and it can be proved that the property has passed to another person, the

creditor cannot seize it, because it no longer belongs to the debtor. If the creditor

claims the credit before sale, then the sale takes place, the creditor registers the sei-

zure at the Land Registry, and finally the buyer registers his acquisition, the buyer

does not receive any protection as the claim is prior to his purchase, and he will not

receive registration protection because the Registry had made the encumbrance pub-

lic knowledge.

4.3 Payment

Please refer to the above statements under point 3.3.

If the delay in payment has caused loss or negative effects to the seller, the buyer

should, of course, compensate him. However, no legally established sanction for

such non-compliances exists (the value of losses to be compensated has to be

proved), although it may have been agreed upon by both parties.

4.4 Defects and Warranties

Leaving aside the responsibility of the developer (cf., infra, § 5), when the sale is

executed by a private individual, the following regulations are established in our

laws:

Art. 1484 C.c.: The seller is responsible for any hidden defects that the object sold

Real Property Law – Spain Report

might have, if these defects make it inappropriate as regards the use for which it was

purchased, or if they diminish its use to such a degree that the buyer, having known

the defects, would not have acquired it or would have paid a lower price for it; how-

ever, the seller will not be responsible for obvious defects, nor for those that are not

visible, if the buyer is a expert who, because of his profession or knowledge, should

have noticed them.

Art. 1485 C.c.: The seller is responsible for any hidden defects that the object sold

might have, even if he was unaware of them.

This ruling will not be enforced where the opposite has been stipulated by the par-

ties, and the seller is unaware of any hidden defects that the object sold might have.

Art. 1486 C.c.: In the case of the two previous articles, the buyer can opt to dissolve

the contract, and be reimbursed for the expenses paid, or to have the price reduced

by a fair amount, as determined by an expert.

If the seller knew of any hidden defects that the object sold might have and he did not

show them to the buyer, the latter will have the same options, and furthermore, he

will be reimbursed for any losses and negative effects should he opt for dissolution of

the contract.

Art. 1487 C.c.: If the object sold is lost because of any hidden defect known to the

seller, the latter will suffer the loss and will reimburse the price and the costs of the

contract, including all damages and harmful effects. If he did not know of them, he

will only reimburse the price and the costs of the contract paid by the buyer.

Art. 1488 C.c.: If the item sold had any hidden defects at the time of sale and it was

lost by chance or through the buyer’s own fault, the buyer can demand from the

seller the amount he paid, minus the value of the object at the time of its loss.

If the seller worked in bad faith, he should also reimburse the buyer for damages and

interest.

Art. 1490 C.c.: The actions set forth in the above five articles will be extinguished as

of six months from the transfer of the sold object.

Real Property Law – Spain Report

5. Sale of a house or apartment by a building company

(vente d‘immeuble à construire/Bauträgervertrag)

5.1 Statutory Basis

Regarding sale by property developers, there are important rules protecting the con-

sumer:

• Above all, Law 26/1984, dated July 19th, called General Law protecting Consum-

ers and Users, which regulates the rights of consumers in general and forbids all

kinds of unacceptable clauses, which frequently appear in contracts for the sale of

new dwellings. This Law has undergone several modifications, such as that intro-

duced by Law 7/1998, dated April 13th, which regulated the General Contracting

Conditions, and that of Law 23/2003, dated July 10th, on Guarantees for the Sale of

Consumer Goods.

• The previous Law is completed by Royal Decree 515/1989, dated April 21st, on the

Protection of Consumers regarding information that has to be provided for the Pur-

chase or Lease of dwellings.

• Law 57/1968, of July 27th, on collection of the amounts paid in advance for the

construction and purchase of dwellings.

• Law 38/1999, of November 5th, on Construction is very important, since it regu-

lates, amongst others, the developer’s responsibilities regarding defects in the build-

ing during the years following the completion.

• Since a significant portion of dwellings are acquired through mortgage loans, the

Order of May 5th, 1994, modified by the Order dated October 27th, 1995, on Trans-

parency of the Financial Clauses in Mortgage Loans, has become exceptionally im-

portant.

Law on consumer protection is a relatively new issue in Spanish Law, since its intro-

duction into law only began in 1984, although it is referred to in the Constitution of

1978. In fact, the development of this area of Law has been enabled on the basis of

the principles of Community Law, and, in several instances, by transcribing the rules

of the European Union.

5.2 Procedure in general

There is no specific Law on contracts for sale of dwellings by developers. Roughly,

this kind of conveyance will have the same formal requirements as an ordinary sale.

But all the rules mentioned under section 5.1, with regard to protecting the consumer

in the purchase of a dwelling, are applicable in this case and hold great importance.

Normally the purchaser pays an initial amount, which for the seller serves as guaran-

tee that the flat will actually be purchased. A private contract is signed at this stage

and is usually drawn up by the developer, although he is under an obligation to com-

Real Property Law – Spain Report

ply with all the requirements and regulations on consumer protection and cannot act

contrary to consumer rights. The remainder of the price is usually paid at the time of

signing the notarial act. It is also frequently the case that, if the developer had previ-

ously been granted a mortgage to finance the construction, the purchaser deducts the

loan from the price payable and commits himself to repay it directly to the bank.

There are important guarantees against defects in the building, which have been in-

troduced by the Law on Construction, dated November 5th, 1999. This Law states

that the developer and the experts involved in construction shall be responsible dur-

ing a 10 year term for damage which may affect the building's structure; during 3

years, for physical damage due to defects in the building’s elements or in the installa-

tions, which might make it uninhabitable, and during one year, for damages in the

small completion facilities and components. It also declares that liability for these

damages must be covered by specific insurance. At present, since we are going

through a transitory period, insurance is so far only required to cover the liability for

structural damages during the first 10 years; insurance for the other sorts of damage

should be made compulsory at a later date. The notary has, thus, to verify that this in-

surance policy has been contracted before signing the notarial act authorising the

declaration of new construction by the developer. In any case, without insurance it is

not possible to register the construction.

The fact that the sold property forms part of a condominium association does not af-

fect the obligations and the responsibility of the developer towards the purchaser. It

merely forces the purchaser to accept the regulations of the building, if they have

been registered or if they have been expressly agreed.

If the building’s renovation has relevant economic value, the legal regime regarding

consumer protection is the same as that governing a new building constructed by the

developer.

5.3 Conclusion of the Contract

There are no differences with the general assumptions for the sale of real property,

except for the provisions of the regulations on consumer protection.

5.4 Payment

Normally the developer sells the dwelling through a private contract before the build-

ing's completion. In this case, one part of the price (normally 10-15 %) is initially

paid as a guarantee for the seller, who reserves the apartment for the purchaser. If the

purchaser decides not to complete the purchase, he will loose the total or a fraction of

that initial amount.

The rest of the price is usually paid on execution of the notarial act. Normally, as

happens in all deeds, the money is paid entirely to the purchaser and is not deposited

in a notary’s trust account.

If the developer has financed the construction with a mortgage loan, the purchaser

Real Property Law – Spain Report

may have the opportunity, if approved by the bank, to deduct the amount of the loan

from the purchase price and to repay the remainder of the loan directly to the bank

within the terms previously agreed with the developer, or later settled differently

with the purchaser. But according to the legislation on consumer protection, the de-

veloper may not force the purchaser to accept this mortgage subrogation or to pay the

subsequent cancellation costs if subrogation does not take place.

As mentioned before, all obligations resulting from a notary’s deed are straightfor-

wardly enforceable. This applies both to the obligation to pay the price, if some frac-

tion of it was deferred, and to obligations regarding the flat’s completion. This means

that a judge can be requested to directly enforce the obligation established therein

without any need for evidence as to the validity of the obligation, since the notary has

previously verified the validity of the parties' contractual consent.

This can turn the notarial act into a very functional title in Europe: as long as notarial

systems share essential characteristics (that is: that the notary not only verifies the

identity of the parties, but also their capacity, the fact that the contents of the nota-

rised deed agree with their true will, and the compliance of the deed with law), notar-

ial acts may be regarded as equivalent in all countries (even though they might come

from different countries), and this will allow their enforcement without judicial evi-

dence on their validity, thanks to the previous verification by a civil servant.

The purchaser has the legal right to two guarantees:

• If he pays a share of the price in advance during construction (in order to purchase a

dwelling), the developer, on receiving these amounts, has the legal obligation to

guarantee their repayment (plus 6% annual interest) in the event that the construction

does not begin or is not correctly completed in due time, through an insurance con-

tract signed with an authorised and registered Insurance Company. Additionally, he

must deposit these advanced sums in a special bank account, separated from any

other kind of funds. And he may only make use of these amounts for the construction

of dwellings. This is set out in the Law 57/1968, dated July 27th, although sometimes

these obligations are not fulfilled due to ignorance on the part of the interested par-

ties.

• We have already seen how the Law on Construction, dated November 5th, 1999,

compels developers to take out insurance covering their responsibility for structural

damages during the first 10 years; and in the years to come an extension of this obli-

gation to insure additional less important damages is expected.

With regard to the acquisition of ownership, there are no differences with property

acquisition under an ordinary contract for sale. Therefore, please refer to the details

above.

The most common course of conduct is that, on the signing of a private contract, only

a small amount is paid in order to reserve to oneself the purchase of the dwelling (10-

15%). Often, during construction, no further amounts are demanded, although it is

not unusual to agree a payment of some additional amount, and the remainder on

purchase of the flat via notarial act.

There are also certain special ways to pay the price. The most common are:

Real Property Law – Spain Report

• Construction in cooperatives: all the building's owners purchase the plot together

and continue paying the costs of construction throughout until finally receiving their

individual flats. The Cooperative Company is the owner of the building, but is dis-

solved at the end when the constructed flats are distributed among its associates. This

system is most commonly used for the construction of Subsidized Housing. A coop-

erative is normally managed by professional agents paid for this purpose.

• The exchange of plots for flats: This system has been used many times in Spain

over the last few years, and has often been prompted by solutions invented by Nota-

ries. It is normally used for small constructions, in which the owner of a plot trans-

fers his ownership to the developer in exchange for one or several dwellings, parking

places, etc., which he expects to receive on completion of construction. Different

kinds of securities can be used in these cases.

At present, more than 90% of the flats that are purchased by private individuals are

financed by a mortgage. If the developer has taken out a mortgage in order to fi-

nance the construction, he offers the purchaser the possibility to subrogate the loan: if

the bank accepts to grant the purchaser the loan, bearing in mind his payment capac-

ity, the purchaser deducts the remaining loan amount from the sale price, and pays it

directly to the Bank within the term and under the conditions initially agreed with the

developer, or else on the purchaser’s renegotiated terms. If the amount is not suffi-

cient for the purchaser, he may obtain a second loan from the bank secured by a

mortgage on the same dwelling.

The mortgage may be also arranged with any other bank in order to finance the ac-

quisition.

In both cases, all transactions are typically carried out in one single act: both con-

tracts (the conveyance, and the new mortgage contract or that of acceptance of the

developer’s loan by the purchaser) are signed before the same notary and at the same

time. The bank pays the loan amount by cheque, which is simultaneously handed

over to the seller. The transaction does not show any real security problems, thanks

to the notary’s verification that there are no charges encumbering the property and to

the fact that a report on the sale is immediately sent to the Land Registry via fax. As

soon as it can be carried out online, in real time, using the notary's electronic signa-

ture, security will be almost completely guaranteed.

5.5 Builder’s Duties - Protection of Buyer

It is advisable that the developer, before commencing the sale of the flats he is build-

ing, signs the notarial act shaping the building’s description and its partition into dif-

ferent flats and premises ("horizontal division"). This deed is registered at the Land

Registry and from that moment binds any purchasers of apartments, whether by pri-

vate contract or notarial act.

If the developer does not act in this way, conflicts may occur, since the private con-

tract may contain an inaccurate description of the flat or of the rest of the building,

common areas, etc., or try to modify the general shape of the building or of some of

it’s common areas (which he cannot do by himself, unless he has retained the right to

do it, and this is not abusive). In any event, disagreements may arise as to the accor-

Real Property Law – Spain Report

dance of the completed building with the developer's offer.

In all these cases, as long as the private contract has not transmitted the property by

itself –possession not having been transferred-, the developer may in theory, as sole

owner of the plot and of the constructed building, modify the horizontal division. But

if the purchaser proves that it does not comply with the agreement made in the pri-

vate contract, he may receive compensation for the loss suffered. On many occa-

sions, the courts have rendered void the modifications to the building’s description

made by the developer, taking into consideration the fact that although the property

has yet to be transferred, the purchasers hold a ius ad rem that shall soon become a

true ius in rem over the flats, and this right deserves treatment equal to that of a true

proprietor.

Most commonly, the parties agree a term covering completion of construction and

the handing over of the building and containing a penalty against the seller in case of

delay.

But normally, in the case of delay, the seller will rely on force majeure, which occa-

sionally reduces the sanction.

We have already quoted the developer’s responsibilities during the terms of one, 3

and 10 years following sale regarding the different types of damage or faults of con-

struction, as set out by the Law on Construction, nr 38/1999, dated November 5th.

According to this law, liability shall attach individually to any of the persons who

have taken part in the construction and who have, through their actions, caused dam-

age (developer, architect who designed the project, architect overseeing construction,

subcontractors carrying out construction). These persons may also be held liable for

the actions of other agents dependent on them such that they should have watched

over their actions.

5.6 Builder’s Insolvency

We have seen how Law 57/1968, dated July 27

, sets out the developer’s obligation

and gives important guarantees to the purchaser in order to ensure the amount ad-

vanced is recovered in case the building is not completed.

Since normally the right of ownership is not transferred until the construction is com-

pleted and the notarial acts of conveyance are signed, the purchaser has no right in

rem over the plot nor over the completed part of the work, but holds under the same

conditions as the other creditors.

Even though this is the most common practice, nothing hinders the formalisation of

the flats’ notarial act of sale from the beginning of the building work. This would

grant the purchaser a right of ownership over the flat as well as his share (according

to the fixed ratio determined in the statute of the condominium) of the plot. And this

right can easily be secured if the notarial act is registered. But this is seldom the case,

because most developers prefer to postpone the notarial acts, thus keeping a certain

flexibility to modify the projected building.

Real Property Law – Spain Report

6. Private International Law

6.1 Contract Law

The law in this case differentiates between three aspects: the law applicable to obli-

gations arising from a contract, the law applicable to the form of the contract, and

that applicable to the rights over real property.

• The obligations arising from a contract regarding real estate are regulated by the

law to which the parties themselves have submitted, provided it has some kind of

connection to the contract. Where there is no agreement on this matter, they shall be

regulated by the lex rei sitae. (In the case of a donation, the personal law of the donor

applies).

• Possession, ownership and further rights over real property, as well as their registra-

tion, are regulated by the lex rei sitae.

• The form and formalities of contracts and legal acts are in principle governed by the

lex loci actum. But there are many special rules:

Contracts drawn up according to the formalities required by the law applicable to

their content shall be valid, as well as those formalized according to the personal law

of the transferor or the common law of both parties (lex personae).

The acts and contracts regarding real estate properties shall also be valid if their for-

malities comply with the requirements of the law of their location (lex rei sitae).

But whenever the law governing the contents of these acts and contracts requires a

special form or formality in order to be valid (which is in any case exceptional in

Spanish law), it shall always be applied, even if they are executed abroad.

Spanish law shall be applied to the contracts, wills and further legal acts authorised

abroad by Spanish diplomatic or consular civil servants (who can act as notaries in

their consulates).

We have seen that Spanish law does not require any special form for property trans-

fer. A valid contract (titulus) together with the transfer of possession or equivalent

act (modus) is enough.

There is however an important rule that deserves a comment: According to the Ley

Hipotecaria, in order for acts of transfer of ownership or encumbrances on properties

to be registered, these have to be included in a notarial act. This notarial act is usually

executed before a Spanish notary, but it may also be before a notary of another coun-

try of the European Union, provided that it is equivalent to the Spanish notarial act

with respect to formal and essential requirements (that is: that the notary not only

verifies the parties’ identity, but also their capacity, that the agreement contains their

true will, and that it is in compliance with the Law).

This is the case in almost all the notarial acts of European Notaries, but it is not the

case of the Notaries of London, where the real property is verified but not the validity

or legality of the business contained in the document. (In any case, the truth is that

Real Property Law – Spain Report

most Land Registries accept conveyances or power of attorneys written up by Lon-

don Notaries, even though they do not exactly fit the Spanish legal concept of a no-

tarial act).

Progress in making the requirements and contents of notarial acts from different

countries equivalent (not only with respect to the form but above all with respect to

their substance) is deemed extremely important: not only should this enable the cir-

culation of notarial acts in the European Union for property transfer, but also their

registration, as well as the enforceability of obligations arising from them.

6.2 Real Property Law

Lex rei sitae applies:

Art. 10.1 of the Civil Code: The possession, ownership and further rights over real

property, as well as their registration, are governed by the law of their location.

As regards the formal requirements, see above under section 6.1.

6.3 Restrictions on Foreigners acquiring Land

Restrictions on the acquisition of real property by foreigners are practically non-

existent. They only remain in some areas of military interest (i.e. islands and coastal

areas), where acquisition by citizens not belonging to the European Union requires

authorisation by the Ministry of Defence.

On the other hand, there is a special regulation on so called “foreign investments”

which applies to the persons residing outside Spain, regardless of their nationality

(that is, it is applied to the Spanish nationals who have their official -tax- residence

outside Spain, but not to the foreigners residing in Spain). Its sole purpose is admin-

istrative and statistical control, and it only generates a duty to declare to the Finance

Ministry any investments in real estate exceeding 3,005,060.52  or coming from tax

havens.

Non resident persons are also subject to special tax regulation, which is not more on-

erous than the normal regulation for residents, but is intended only to prevent tax

evasion: whenever property is sold in Spain, the buyer has a legal duty to retain 5%

of the price and pay it directly to the tax office on behalf of the seller. This payment

is just a provisional disbursement made in advance, as the seller also has a duty to

make a tax declaration in the three months following sale, in which he should pay

exactly the same amount as a Spanish Resident (dependent on the profits he has ob-

tained from the investment and its later sale). The amount retained by the buyer shall,

consequently, be deducted from the quantity the seller must pay, or eventually given

back to him, if indeed he had nothing to pay, or less than the retained sum.

Furthermore, another special rule imposes on notaries a duty to confidentially inform

the Ministry of the Interior of certain transactions that due to special circumstances

(specified by the law) might be considered as suspect of money laundering.

Real Property Law – Spain Report

6.4 Practical Case: Transfer of Real Estate among Foreigners

If the country where these persons reside has a notarial system analogous to the

Spanish system in its formal and essential aspects, then it is in principle possible to

execute the contract before a notary of that country. In addition, the notarial act must

contain the Hague Convention Apostille and be translated by an official translator

who is registered in Spain or a notary.

Nevertheless, the execution of the deed signed before a Spanish notary tends to be

more convenient for several reasons:

• At present, only a Spanish notary can obtain the report via fax from the Land Regis-

try on the situation of charges over the property, and only a Spanish notary can send

to the Registry the report on the signature of the notarial act in order to prevent other

deeds or seizures of the property from being registered.

• In order to avoid subsequent penalties, it is very important to fulfil the fiscal obliga-

tions (payment of local, regional and national taxes), as well as to observe further

administrative obligations (declaration before the cadastre, registration of foreign in-

vestments) which the notary ensures are fulfilled for his clients, in most cases, being

a legal duty of the notary, without any additional fees.

• In the case of urban real property or property intended for residence, information on

the full situation from the point of view of urbanism can be essential in order to de-

termine their value. This information is not provided by the Land Registry but occa-

sionally it can be obtained by the notary, or at least, he may inform the parties before

execution of the contract of the risks which the urban situation of the property might

imply, as well as the way to obtain such information.

Real Property Law – Spain Report

7. Encumbrances/Mortgages (and Land Charges)

7.1 Types of mortgages/land charges

In fact, in Spanish Law there is only one general type of mortgage: all mortgages are

essentially equal regarding their content, scope and their status of rights in rem or se-

curity encumbrances.

There are differences due to the nature of the obligation secured with the mortgage:

• Normally the mortgage secures an obligation which already exists and whose fea-

tures are perfectly determined: amount, term and creditor. For example, a regular

loan, or the deferred price in a purchase-sale.

• A mortgage can secure a future obligation, which does not exist and which is not

sure to exist. In this case, it is necessary to determine precisely the eventual nature

and identity of the obligation and its maximum amount. For example, when a person

provides a guarantee for another person’s loan, if the creditor finally enforces the

guarantee and requires payment from the guarantor, a repayment obligation arises

against the person who has benefited from the guarantee?. Occasionally, this even-

tual future obligation is secured with a mortgage.

• A mortgage can secure an obligation which already exists, but whose amount is un-

known: for example, the obligation to pay interest at a variable interest rate, or to pay

a fixed amount of dollars or gold, whose exchange rate in euros is unknown. In these

cases, the criterion applicable to the assessment must be clearly determined (e.g., the

official exchange rate on the expiry date), and the maximum amount guaranteed as

regards third parties must be fixed in euros.

• A mortgage may secure special obligations and hence have some special features

depending on these effects: this is the case when it secures a rent paid by monthly or

yearly instalments, or when it secures obligations attached to a bill of exchange or a

bond released to the bearer or endorsable: in this case, the guarantee is established in

favour of the legal holder of the bond.

• A special class of mortgage, of particular significance, is the mortgage securing a

current account: In a current account contract both parties (two businessmen, or a

bank and its client) agree that all future debts of a certain kind between them shall be

registered on this account. In this way, none of the debts is individually paid, but go

on the account’s final balance. Banks often grant their customers a credit account,

which enables them to get credit by debiting this account up to a maximum amount.

In this case, interests are only paid for the amounts withdrawn and during the period

that they are effectively owed. When the term elapses, if the account presents an out-

standing balance for the customer, he shall be obliged to pay it to the bank. This

payment obligation of the debit balance on the account’s cancellation can be secured

by a mortgage. In this case, it is essential that the account is duly identified and that

the obligations which may debit the account are exactly determined (for example, all

those arising from money withdrawals made by the customer debiting the account, or

those stemming from the money advanced by the bank in order to carry out collec-

tions of bills or of further obligations of the customer's debtors, in case these had not

Real Property Law – Spain Report

been successfully collected).

It is however not possible to agree that all eventual debts in favour of the bank debit

the account indistinctly and to secure the account’s final balance by the mortgage,

since in this way a “floating” mortgage would by established securing undetermined

obligations towards third parties.

These mortgage secured credit accounts present another important feature: normally,

for the determination of the account’s final balance, the payment of which is secured

by the mortgage, it is agreed that a certificate issued by the creditor shall suffice.

• It is not possible to secure by a mortgage the fulfilment of non-monetary obliga-

tions (for example, the obligation to render a particular service). But the future and

eventual obligation to compensate for damages incurred due to non-fulfilment of this

obligation may be secured by mortgage.

In Spanish Law, a mortgage is, by its nature, a right in rem or a security encum-

brance: it directly impinges on the real property and is effective as against third par-

ties, although its purpose is only to guarantee the collection of the debt.

A mortgage does not grant its holder the right to acquire the object. In Spanish Law,

it is strictly forbidden to establish guarantees such that in case of non-fulfilment the

creditor would have the right to keep or acquire the debtor’s object (the so called

agreement from the Lex Comisoria). In all cases, the creditor can only execute a sale

of the object by means of an auction ordered by the court or by a notary, and cancel

the debt with the money obtained from it. If there were still some money left, it

should be given to the debtor (or to other eventual creditors demanding it). And if the

money obtained from sale were not enough to pay the debt, the creditor would have

the right to demand that it be paid against other properties of the debtor (except for

the rare cases in which the contrary is agreed: that the debtor’s responsibility for the

debt is limited to the mortgaged property.) In cases where the value of the debt ex-

ceeds the maximum amount secured with the mortgage (for example, because inter-

est has accrued over a period of many years) and there are other creditors, the mort-

gage creditor shall only be paid up to the secured mortgage amount; in all other re-

spects he shall be considered as an ordinary creditor.

Furthermore, due to its right in rem nature, a mortgage has effects as against third

parties but only up to the maximum secured amount: if any other person purchases

the mortgaged property and the debtor fails to pay the debt, the creditor may sell the

property by court order or before a notary, and in both cases through an auction. On

the establishment of the mortgage, the maximum amount secured by it must be set in

euros: if more money is obtained, the rest shall be paid to the future purchaser of the

property. And if the final debt is less than the maximum secured amount, the rest

shall also be given to the purchaser. Furthermore, the purchaser must be summoned

to appear during the legal proceedings of mortgage foreclosure and may stop the sale

effected by court order or before a notary by paying the debt up to the maximum

mortgage secured amount.

7.2 Setting up a mortgage

Real Property Law – Spain Report

The so called “mortgage of the owner”, which is created and exists as independent

from a particular obligation, does not exist in Spanish Law. A mortgage is necessar-

ily attached, accessory, to the secured obligation: it can only exist if the obligation al-

ready exists. Once the secured debt is paid, the mortgage is automatically deemed in-

existent (even if it is not cancelled at that time by the Land Registry), so the mort-

gage cannot be used again, to secure another debt. The reason for this is that any pos-

sible purchaser of the property should thus be able to know exactly what charges en-

cumber it: precisely what are the secured obligations and what is the outstanding bal-

ance remaining at the time he wishes to buy it.

Therefore, the normal procedure for establishing a mortgage is the following: the

bank, once it considers that it can grant the loan and has got a preliminary report on

the property’s legal situation, sends the information to the notary. The notary then

prepares the notarial act of mortgage loan and verifies that the property is free of

charges on the same day of execution. On this day, the bank and the borrower sign, at

the notary’s office, the notarial act which determines the loan’s conditions, the bor-

rowed money is paid during the same act and the mortgage is established in the pub-

lic deed. The notary sends the report on the establishment of the mortgage via fax to

the Registry and thus ensures that no other right or encumbrance with precedence

over the mortgage can be registered.

During the last years, a system for establishing mortgages has been developed, which

presents differences in the operational sense, although legally it does not essentially

differ from the normal system. The General Notaries’ Council has developed an elec-

tronic platform called e-notario based on the connection of all notary offices through

the data centre of the Council, by using the electronic signature of all notaries and a

communication channel with very high security standards. This system is used for

sending information to the Notaries’ Association and the public administration

(Inland Revenue, Cadastre, Town Councils, etc.) This system has also been used in

collaboration with some banks in order to outsource the preparation of mortgages to

notaries: when the bank approves the grant of a loan, it informs the notary via this

platform and the notary effects -for the bank- the legal report on the property by

analysis of the charges and an assessment of the property’s value. When the notary

approves the operation, he puts it on record in the bank’s database, and the bank then

automatically sets the date for execution. On this date the bank deposits the loan

amount in the notary’s trust account and the notary signs the notarial act with the

borrower (including therein the loan’s conditions, which the bank reports to e-

notario, and which the customer has previously accepted) and gives him the bor-

rowed amount. Afterwards, the bank ratifies the deed signed by the notary so as to al-

low for its registration. But the money has been paid in advance, once the notary has

informed the bank that the mortgage does not involve hindrances or risks and that the

borrower has signed before him.

From a legal point of view, there are no special requirements for establishing a mort-

gage: the signature of any kind of loan contract, which clearly specifies its conditions

such that it can be registered, suffices.

But regulations on the protection of consumers in mortgage cases imposes on the

bank important obligations, the non-fulfilment of which may determine the bank’s

contractual responsibility or the non-application conditions prejudicing the customer.

And the notary must check that these obligations have been fulfilled before signing

the mortgage loan.

Real Property Law – Spain Report

Prior to the signature of the loan and in order to compare conditions offered by dif-

ferent banks, these shall hand to the customer a binding offer containing all the

loan’s financial conditions (principal amount, term, applicable interest, fees, etc.)

These binding offers must be signed by a bank representative and allow the client to

decide whether or not he accepts the terms during the ten days following its submis-

sion. When the customer decides which offer he wishes to accept, he informs the

bank and then the loan has to be signed. Both the offer and the loan shall clearly and

separately include all the loan's financial conditions.

Mortgages are almost the only case in which a right in rem only exists from the mo-

ment of registration. The registration has, thus, a constitutive effect. Anyway, the ex-

act meaning and consequences of the legal norm establishing constitutive effect of

the registration of a mortgage, in a non-formalistic legal system, as is the Spanish

one, are not clear, and subject to intense debate.

Therefore, the notarial act of mortgage loan is sent immediately to the Land Registry

for its registration. The registration form does not have to include a transcription of

all the agreements of the mortgage loan, but only those which must be opposable to

third parties: the loan’s amount, its term, the reasons for legal and contractual early

termination by the bank, as well as the agreed and default interest rates.

Usually not more than 2 or 3 days elapse between the moment the bank sends the in-

formation to the notary and the execution of the notarial act. In urgent cases, if it is

possible for the Land Registry to send information on the property to be mortgaged

on the same day, it can be done in 1 or 2 days. But prior to this the bank usually

needs 7 to 14 days in order to approve the loan, after it has made a legal report on the

property and its assessment. If problems arise (for example, if according to the Reg-

istry there is a usufruct or a prior mortgage, which has not been cancelled, or if the

dwelling, being subsidized housing, has a legal value less than that obtained by the

bank's expert) the period can be longer, since these problems have to be solved first.

The system for mortgage processing through e-notario tries to shorten these delays,

since all the verifications are made automatically and only once by the notary.

The approximate cost of the establishment of a mortgage is the following:

Tax: it is collected depending on the autonomous region, although in most cases it is

1% of the total amount secured by the mortgage (principal, interest over 3 or 5 years,

default interest, costs for the bank in case of foreclosure), which is equivalent to

1.50-2.00 % of the borrowed principal. The imposition of this tax is highly open to

question, since all financial transactions should be tax free in order to prevent distor-

tions in the functioning of markets. Therefore, if a normal loan is not subject to any

tax payment, there is no reason why a loan with additional guarantees must carry this

important fiscal charge, and be conspicuously more costly than when it has no securi-

ties attached.

There is an exception to this: although any loans granted by banks and secured by

mortgage pay this tax, when the loan is agreed between two normal persons the

mortgage is not subject to this tax.

Real Property Law – Spain Report

7.3 Causality and Accessoriness

As it has been said, a mortgage is legally attached to the secured loan. Therefore, if

the loan is null and void, so the mortgage shall also be null and void, or rather, in-

existent.

There is no real withdrawal right from a loan once it has been signed. But if it ex-

isted, as the loan would have been signed together with the mortgage, the recovery of

the money paid would be guaranteed by the mortgage.

In principle, it is impossible to substitute the debt secured with a mortgage, such that

a new debt is secured by the same mortgage. As it has been mentioned a few times, a

mortgage is attached to the secured loan in such a way that it can only exist together

with the debt. The speciality principle requires that the debt secured by the mortgage

is very clearly defined at any time. Nevertheless, exceptions to this rule have been

gradually introduced:

• The law ("Ley 2/1994, de 30 de marzo, sobre subrogación y modificación de

Prestamos Hipotecarios") set up the first exception as it created a system through

which the debtor of a mortgage loan could negotiate with another bank a loan under

better conditions, and secure it with the same mortgage, cancelling at the same time

the first debt. This system is based on an old rule in the Civil Code (Art. 1211), ac-

cording to which, if the debtor asks for another loan in a notarial act (with several

additional formalities) in order to cancel the original debt, he may substitute the first

lender with the new lender, in such a way that the second creditor acquires the first

credit with all guarantees and rights attached. In other words, with this legally drawn

system it is possible to shift creditors and modify some of the conditions of the loan,

using the same mortgage, which is therefore not modified.

In this way, the Law on Subrogation has put forward the possibility of cancelling the

debt with the first bank and transferring the mortgage to a second bank without the

signature or involvement of the first one, which might or might not be willing to

agree and cooperate in the transfer of its mortgage right. This system is based on the

intervention of the notary, who controls the process and especially checks that the

full amount of the second loan is paid to the first bank and that the debt with the first

bank is thus completely settled. This allows a security encumbrance that has been

registered in the name of one particular creditor to be shifted to a new and different

creditor, even though the first one doesn't consent to it in a notarial act, as is the gen-

eral rule.

So, the same mortgage is used to secure the second loan. This system, based on veri-

fication by the notary, who defends both the debtor's and the banks' rights, has

caused an enormous increase in competition between banks and has resulted in an

enormous reduction of the average interest rates for mortgage loans, which at present

are at Euribor plus one point.

• As it has been explained, Spanish Law allows the bank to grant its customers a

credit for a particular term, in order to charge to it all the debts arising from certain

specific transactions (which need to be clearly identified in the loan and mortgage

notarial act), and to secure by a mortgage liquidation of that credit account, which

will, obviously, include all the debts listed on the contract. That list can be as exten-

sive as desired but must be closed and unambiguous.

Real Property Law – Spain Report

Furthermore, even though this credit is granted for short terms (usually not exceeding

5 or 6 years), it is possible to negotiate –prior to its maturity- an extension of a cer-

tain number of years, and to agree that the extension be secured by the same mort-

gage. This contract has to be formalised in a notarial act and entered in the Registry,

which carries additional expenses, even though it does not seem to be subject to tax

payments (which normally involves the most important costs where mortgages are

concerned). In any case, this matter, the tax exemption of the enlargement of the

credit with its mortgage, is subject to discussion.

• Some banks have used this accepted idea of a fixed term credit secured by mort-

gage and have introduced a contract which can serve to guarantee subsequent loans

agreed by the bank with its customer. Common practice is as follows: the bank, for

example, grants its client a credit of 500,000  for a term which is usually very long

(20 to 30 years). At the moment of signature, the client withdraws the 500,000 and

commits himself to repaying it like a normal loan, that is, by 240 or 360 monthly in-

stalments comprising principal and interest, pursuant to the French redemption sys-

tem. As soon as these monthly instalments or the partial or total early repayment of

the received amount reduce the debt to less than 500,000, the client is again author-

ised to withdraw more money by debiting the credit account, up to that limit. These

new withdrawals –which in fact operate as new loans granted by the bank- have to be

formalized through a private contract signed with the bank (which has no special

formal requirements, and does not even require a notarial act), and shall include a

term of repayment (not exceeding the initially agreed 30 years after the initial with-

drawal) thereby causing new monthly payments -comprising principal and interest-

in order to repay the second loan. Since it has been agreed that the second loan (or

third, fourth, etc.), which the customer wishes to take, are all charged to the same

credit, they are all secured by the same mortgage. What is really achieved in this way

is that one single mortgage is used for securing subsequent loans granted by the same

bank without additional charges.

A generic pledge to pay a specific amount is possible provided that it is based on the

payer’s confession that he has a debt with his creditor (which, thus, needs not to be

proved); once the debt has been admitted in this way, it may be secured by a mort-

gage.

Spanish Law however does not allow the establishment of a mortgage before the ex-

istence of the debt, in order to later negotiate a loan and secure it with the pre-

established mortgage. It is forbidden in order to prevent the owner from establishing

the mortgage and thus preventing the foreclosure of his properties by other ordinary

creditors, even though the debt is not real. Furthermore, the system of charges and

encumbrances checking by the notary at the time of creation of the mortgage and the

report on the mortgage to the Land Registry by the notary at that very time is suffi-

ciently secure, so there is no need for such a proprietor's mortgage.

7.4 Enforcement and other rights of the bank

The procedure used is nearly always that of judicial enforcement, which normally

lasts for 1 or 2 years, depending on the speed of the enforcing courts and of the hin-

drances the debtor might put in place.

Real Property Law – Spain Report

The sale must be carried out by judicial auction. Spanish Law forbids the old agree-

ment of the lex commissoria; so the bank can never appropriate the property.

In order to speed up mortgage foreclosures, a foreclosure procedure before a notary

was established about 10 years ago. This procedure takes no more than a few months,

if there is no justified opposition by the debtor, and finishes with an auction of the

property at the notary's office. Nevertheless, this procedure has been rarely used,

mainly because of the unawareness of its existence, and probably as well because of

the fear of possible problems that might arise, despite the fact that in all mortgage

cases the possibility of auction before a notary of the mortgaged object is always

agreed upon. In the first years after it was introduced, the Supreme Court twice de-

clared that it violated the citizen's constitutional right to effective judicial protection,

as the notary deprives the citizen of the property by holding the auction himself

without the intervention of a court. Nevertheless, whilst these sentences were highly

criticised, the Constitutional Court (which has a higher rank than the Supreme Court)

later considered that there was no such problem of unconstitutionality.

In principle, if the debtor has not been declared bankrupt, the creditor sells the object

via a court process, and collects his credit with the money obtained from that sale.

Any money left is handed over to the owner (or to other eventual creditors demand-

ing it). And if the money obtained from the sale does not suffice to pay the debt, the

creditor may demand that it be paid with other assets of the debtor (except in the very

rare cases when the contrary has been agreed: where the debtor secures the debt

solely with the mortgaged property.) But if the debt exceeds the maximum mortgage

secured amount (for example, because interest has accrued over too many years) and

there are other creditors, the mortgage creditor shall only have preference as to the

secured amount, and in all other respects he shall be considered as an ordinary credi-

tor.

7.5 Overriding interests and priority

Taxes from the last four years arising from sales or acquisition of property through

inheritance take precedence over mortgages established thereon. They can be ex-

tremely large, up to 10-15% of the property's value, but this is very rare, since for the

registration of such transfers with the Land Registry, it must be proved that they have

been paid; so the problem only appears when the declared value is less than the real

value. In my opinion, this right of the tax administration to seize properties in order

to be paid taxes that were due by someone other than the actual owner can have ob-

vious constitutional problems, as the tax shall be effectively collected from someone

different from the person who had the duty to pay it; that is, a citizen can be forced to

pay taxes for something not pertaining to him.

Tax on the ownership of real property over the last two years also takes precedence

over the mortgage, but is usually very low (normally less than 1 % of the property’s

value) and easy to check.

Other charges with precedence over the mortgage are the expenses of the condomin-

ium from the present and previous year, and those caused by the plot’s urbanisation

during the 7 years following its completion, if it has been effected through any of the

legal procedures for joint urbanisation, although it is very rare that these expenses are

Real Property Law – Spain Report

not duly paid.

7.6 Scope of the mortgage

Mortgagea always extend to the plot and the buildings, and any installations and ma-

chinery existing thereon.

It does not extend to furniture which can be easily removed from the property, unless

otherwise agreed.

By law, it extends to compensation for damage and destruction of the building, re-

gardless whether they are owed to the debtor by the third party causing the damage

or by the insurance company. Therefore, banks always require that insurance be

taken out on the mortgaged property when they grant a mortgage loan.

And when the owner mortgages the property, then sells it and the purchaser invests

in it by constructing new buildings or improving those existing, the mortgage does

not extend to these improvements.

The debtor always has the right to make an early redemption of his debt, if the credi-

tor is a bank. However, in approx. 70% of the cases the debtor is obliged to pay a fee

(0.5-1% in the case of variable interest loans, and 3% for fixed), calculated on the ba-

sis of the early redemption amount.

Once mortgage foreclosure proceedings have begun, and before continuing with

them, it is obligatory to offer the debtor the possibility of paying the outstanding

amount, and thus avoiding its continuation. Any owner of the property other than the

debtor, or anyone who owns some kind of encumbrance affecting the real estate and

which should be cancelled once the mortgage has been definitively executed, must

also be summoned so as to offer him the same possibility, although they may avoid

execution of the mortgage just by paying the secured amount of money, in cases

where the effective debt has grown much bigger.

7.8 Security granted by a third party

It is possible and frequent that the bank gives one person a loan, which is secured by

a mortgage established by another person. The avoidance of foreclosure by paying

the debt up to the maximum secured amount does not pose problems or important

special features. The non-debtor mortgagor has the right, as above explained, analo-

gous to that of the person purchasing the property after the mortgage had been estab-

lished, to prevent the execution of the mortgage paying the debt up to the secured

amount.

7.9 Plurality of mortgages

The establishment of several mortgages on the same property in favour of one single

creditor or of several different creditors is possible and is frequently carried out:

Real Property Law – Spain Report

• If the first mortgage has priority over the second one and the first is foreclosed, the

second will be automatically cancelled. But the creditor of the second loan must be

summoned to appear at the trial and is given the opportunity to pay the first debt,

which would not only stop foreclosure of the mortgage with higher priority but also

give him the right to be take the place of the first creditor, with all his guarantees, in

some sense purchasing the loan secured by the first mortgage and thereby acquiring

that mortgage.

• If the mortgage foreclosed is that with lower precedence, the first mortgage will not

be cancelled but will endure. Therefore, any persons taking part in the property’s

auction caused by the second mortgage shall deduct from the price they pretend to

pay for the property the outstanding amount secured by the first mortgage, since they

may have to pay it to the first creditor.

• In some cases, mortgages with the same rank are established: in this case, if any of

them are foreclosed, the other(s) will endure entirely.

• It is very rare that holders of two mortgages agree to modify their priority. This can

be done through a notarial act signed by both of them and by the owner of the prop-

erty, provided that there are no other charges registered with a rank lying between

theirs. In this case, the exchange of the mortgages’ priority will imply a modification

in the precedence of the said intermediate charge, which would also require the con-

sent of the holder of that charge.

7.10 Several properties

Mortgages over more than one property are quite common. In these cases, the bor-

rowed amount must be distributed among both of them, in such a way that their

mortgage liabilities add up to the total mortgage amount. In this case, the creditor has

the right to decide which mortgage he wants to foreclose.

Furthermore, if the total debt has been reduced to an amount equalling the share se-

cured by one of the properties, the debtor shall have the right to request the cancella-

tion of the mortgage on that property, while the other endures.

7.11 Transfer of the mortgage

The mortgage secured loan or credit may be transferred to any other person, without

prior consent by the debtor. This transfer causes the simultaneous transfer of all the

rights attached to the loan, including the mortgage. In order that the transfer be regis-

tered, it is necessary to formalise it in a notarial act and to pay the same tax as re-

quested for the establishment of a mortgage. But the registration is neither necessary

nor mandatory: it only assists the acquirer with the performance of his right and at

the same time protects him against eventual nullity of the contract, which would es-

tablish the mortgage in favour of the previous creditor.

It is however not possible to transfer the mortgage without transferring the credit.

Real Property Law – Spain Report

It is also possible to establish a mortgage simultaneously in favour of several banks,

in syndicated manner. In this case, it is usually agreed that the creditors' rights are

jointly but not severally exercised; that is, each of them may demand and collect only

their share of the credit (which actually functions as several independent loans). In

this case, there is no hindrance on the transfer of part of the credit to a third party.

The concept of transferring a mortgage to more than one creditor does not exist in

Spanish Law.

7.12 Conflict of Laws Issues

Real Property Law – Spain Report

8. Bibliography

8.1 Statutes cited

8.2 General Literature

DELGADO DE MIGUEL, Juan Francisco

Instituciones de Derecho privado / Juan Francisco Delgado de Miguel, coordinador

general. -- Madrid : Civitas, 2001-2004. -- 14 v. ; 24 cm.

Faltan por publicarse: III-2º (1182), V-2º (1187) y 3º (1188), y VI-3º (1191) y 5º

(1193).

Contiene: T. I. (1175-1177) Vols. 1º, 2º y 3º. Personas / José Angel Martínez San-

chiz, coordinador. T. II. (1178-1180) Vols. 1º, 2º y 3º: Reales / Juan Francisco Del-

gado de Miguel, coordinador; T. III. (1181-1183) Vols. 1º y 3º: Obligaciones y

contratos / Vicente L. Simó Santonja, coordinador; T. IV. (1184-1185) Vols. 1º y 2º:

Familia / Víctor M. Garrido de Palma, coordinador. T. V. (1186-1188) vol. 1º. Suce-

siones / Martín Garrido Melero, coordinador. T. VI. (1189-1193) vols. 1º, 2º y 4º.

Mercantil / Ana Fernández-Tresguerres García, coordinadora.

D.L. M. 23767-2001 -- ISBN 84-470-1597-1

1. DERECHO CIVIL-Tratados generales-España. 2. DERECHO MERCANTIL-

Tratados generales-España. I. GARRIDO DE PALMA, Víctor Manuel. II. SIMO

SANTONJA, Vicente Luis. III. MARTINEZ SANCHIZ, José Angel. IV.

FERNANDEZ-TRESGUERRES GARCIA, Ana. V. GARRIDO MELERO, Martín.

VI. Título.

R. 56486

DIEZ-PICAZO PONCE DE LEON, Luis

Fundamentos del Derecho civil patrimonial / Luis DIEZ-PICAZO. -- 4ª ed. -- Madrid

: Civitas, 1992-1995. -- 3 v. ; 24 cm.

Contiene: I. Introducción, teoría del contrato. II. Las relaciones obligatorias. III. Las

relaciones jurídico-reales.

1. DERECHO CIVIL-Tratados generales-España. I. Título.

LACRUZ BERDEJO, José Luis

Elementos de Derecho civil / José Luis Lacruz Berdejo; Revisado por Jesús Delgado

Echeverría (et al.). -- Nueva edición. -- Madrid : Dykinson, 1998-2001. -- 8 v. ; 24

cm.

Contiene: I. Parte general: vol. 1º: (338) introducción, 1998; vol. 2º: (338-1) perso-

nas, 1998; vol. 3º. (338-2) Derecho subjetivo. Negocio jurídico, 1999. II. Derecho de

obligaciones; vol. 1º: (338-3) parte general, teoría general del contrato, 2000: vol. 2º.

Real Property Law – Spain Report

(338-4) Contratos y cuasicontratos, delito y cuasidelito, 1999. III. Derechos reales;

vol. 1º: (338-5) Posesión y propiedad, 2000. III bis (338-6) Derecho inmobiliario re-

gistral, 2001, 350 p. V. (338-8) Sucesiones, 2001, 479 p.

D.L. M. 39750-1999 -- ISBN 84-8155-398-0

1. DERECHO CIVIL-Tratados generales-España. I. DELGADO ECHEVERRIA, Je-

sús. II. SANCHO REBULLIDA, Francisco de Asís. III. LUNA SERRANO, Agustín.

IV. RIVERO HERNANDEZ, Francisco. V. RAMS ALBESA, Joaquín J. VI. Título.

RAMS ALBESA, Joaquín J.

Comentarios al Código civil / Joaquín Rams Albesa: coordinador; Rosa María More-

no Flórez, coordinadora adjunta. -- Barcelona : Jose María Bosch, 2000-2001. -- 4 v.

; 23 cm.

Contiene: I. (155) Título preliminar (arts. 1-16), 2000, 439 p.; II-1. (156) Libro pri-

mero (Títulos I a IV, arts. 17-107), 2000, 1071 p. ; II-2. (157) Libro primero (Títulos

V a XII, arts. 108-332), 2000, 2234 p.; III (157-1) Libro segundo (Títulos I a VIII,

arts. 333 a 608), 2001, 1246 p.

D.L. Z. 3339-1999 -- ISBN 84-7698-565-7

1. CIV. A-III. 2. ESPAÑA-Código civil-1889-Comentarios. 3. CIV. A-II-1-A). 4.

DERECHO CIVIL-Tratados generales-España. I. MORENO FLOREZ, Rosa María.

8.3 Manuals and Formbooks

AVILA NAVARRO, Pedro

Formularios notariales / Pedro AVILA NAVARRO. -- 4ª ed. -- Barcelona : Bosch,

1999. -- 9 v. ; 24 cm + CD-ROM.

1. NOT. E. 2. FORMULARIOS NOTARIALES. 3. DERECHO NOTARIAL. I.

Título.

R. 54248

8.4 Real Property Law and Land Registration

MEMENTO PRÁCTICO FRANCIS LEFEBVRE, Inmobiliario

Editorial: Francis lefebvre, s.a.

Páginas: 1450, Año: 2003

ISBN: 8495828464

Autores: VV.AA.

(A very practical guide to all the main questions about property law and Urbanism)

Real Property Law – Spain Report

ROCA SASTRE, Ramón María

Derecho hipotecario / Ramón María ROCA SASTRE; Luis ROCA-SASTRE

MUNCUNILL; Colaboradores: Alfonso MADRIDEJOS FERNANDEZ, José Angel

MARTINEZ SANCHIZ. -- 8ª ed. -- Barcelona : Bosch, 1995-1999. -- 10 v. ; 24 cm.

1. INM. A-I. 2. DERECHO INMOBILIARIO-Tratados generales. 3. HIPOTECA. I.

ROCA-SASTRE MUNCUNILL, Luis. II. MADRIDEJOS FERNANDEZ, Alfonso.

III. MARTINEZ SANCHIZ, José Angel. IV. Título.

R. 51827

PEÑA BERNALDO DE QUIROS, Manuel

Derechos reales : derecho hipotecario / Manuel Peña Bernaldo de Quirós. -- 4ª ed. --

Madrid : Centro de Estudios Registrales, 2001. -- 2 t. ; 23 cm.

Contiene: I. Propiedad y derechos reales (excepto los de garantía). II. Derechos rea-

les de garantía. Registro de la propiedad.

D.L. M. 39175-2001 -- ISBN 84-95240-45-9

1. DERECHOS REALES. 2. DERECHO INMOBILIARIO-Tratados generales. 3.

REGISTRO DE LA PROPIEDAD. I. Título.

R. 56823

BOLAS ALFONSO, Juan

Derecho hipotecario / Dirigido por Juan BOLAS ALFONSO. -- Madrid : Consejo

General del Poder Judicial, 1994. -- 938 p. ; 24 cm. -- (Cuadernos de Derecho judi-

cial ; 38).

1. DERECHO INMOBILIARIO-Tratados generales. 2. RECOPILACIONES DE

TRABAJOS-Derecho inmobiliario. I. Título. II. Serie.

R. 52057

CHICO ORTIZ, José María

Estudios sobre derecho hipotecario / José María Chico y Ortiz; [colaboradores] César

Carlos García-Arango Díaz-Saavedra (et al.). -- 4 ed. act. -- Madrid : Marcial Pons,

ediciones jurídicas y sociales, 2000. -- 2 v. ; 23 cm.

D.L. M. 23577-2000 -- ISBN 84-7248-781-4

1. INM. A-I. 2. DERECHO INMOBILIARIO-Tratados generales. I. GARCIA-

ARANGO DIAZ-SAAVEDRA, César Carlos. II. Título.

R. 55490

Real Property Law – Spain Report

8.5 Sales Contracts

(see general literature, particularly DÍEZ PICAZO)

8.6 Sale of a building by a construction company (vente d‘immeuble à

construire/Bauträgervertrag)

Aportacion De Solar y Construccion En Comunidad

Muñoz De Dios, Gerardo

Publisher: Espasa Calpe

ISBN / EAN: 8423949729 / 9788423949724

LASARTE ALVAREZ, Carlos

Manual sobre protección de consumidores y usuarios / Carlos Lasarte Alvarez; pró-

logo de, M.ª Dolores Flores Cerdán. -- Madrid : Dykinson, 2003. -- XXVI, 377 p. ;

22 cm. + CD-Rom.

D.L. M. 10229-2003 -- ISBN 84-9772-060-1

1. PROTECCION DEL CONSUMIDOR. I. Título.

R. 57956

LEON ARCE, Alicia de

Contratos de consumo intracomunitarios : adquisición de vivienda y viajes combina-

dos / Alicia de LEON ARCE; Prólogo de Luis DIEZ-PICAZO. -- Madrid : Eurolex,

1995. -- 384 p ; 21 cm. -- (Estudios de Derecho privado, 1).

1. CIV. D-III-3. 2. COMPRAVENTA. 3. MER. G-I-1. 4. PROTECCION DEL

CONSUMIDOR. 5. CEE. D-X. 6. CONTRATO DE VIAJE COMBINADO. I.

DIEZ-PICAZO PONCE DE LEON, Luis. II. Título. III. Serie.

R. 51730

LEON ARCE, Alicia de

Derechos de los consumidores y usuarios : (doctrina, normativa, jurisprudencia, for-

mularios) / Dirección Alicia de León Arce; coordinación Alicia de León Arce y Luz

Mª. García García; Claudio Alvargonzález Terrero [et al.]. -- Valencia : Tirant lo

Blanch, 2000. -- 1637 p. ; 25 cm.

D.L. V. 2960-2000 -- ISBN 84-8442-156-2

1. MER. G-I-1. 2. PROTECCION DEL CONSUMIDOR. I. GARCIA GARCIA, Luz

María. II. ALVARGONZALEZ TERRERO, Claudio. III. Título.

R. 55634

Real Property Law – Spain Report

REYES LOPEZ, María José

Derecho de consumo : la protección del consumidor en los contratos de compraventa

de viviendas, de arrendamiento de obra y financiación... / María José REYES

LOPEZ. -- Valencia : Editorial General de Derecho, 1993. -- 625 p ; 24 cm.

1. PROTECCION DEL CONSUMIDOR. 2. COMPRAVENTA. I. Título.

R. 50608

8.7 Mortgages

CAMY SÁNCHEZ CAÑETE, BUENAVENTURA

Garantías patrimoniales. Estudio especial de la hipoteca.ç

1ª Ed., Ed. Aranzadi, Pamplona, 1993.

8.8 Private International Law

PEREZ VERA, Elisa

Derecho internacional privado / Dirigido por Elisa PEREZ VERA. -- Madrid :

UNED, 1998. -- 2 v. ; 24 cm.

1. IPR. A-I. 2. DERECHO INTERNACIONAL PRIVADO-Tratados generales. I. Tí-

tulo.

CALVO CARAVACA, Alfonso Luis

Derecho internacional privado / Alonso-Luis Calvo Caravaca, Javier Carrascosa

González (directores). -- 5ª ed. -- Granada : Comares, 2004. -- 2 v. ; 22 cm.

D.L. GR. 749-2004 -- ISBN 84-8444-830-4

1. DERECHO INTERNACIONAL PRIVADO-Tratados generales. I.

CARRASCOSA GONZALEZ, Javier. II. Título.

R. 58776

FERNANDEZ ROZAS, José Carlos

Derecho internacional privado / José Carlos Fernández Rozas, Sixto Sánchez Loren-

zo. --2ª ed. -- Madrid : Civitas, 2001. -- 703 p. ; 24 cm.

D.L. M. 42673-2001 -- ISBN 84-470-1695-1

1. DERECHO INTERNACIONAL PRIVADO-Tratados generales. I. SANCHEZ

Real Property Law – Spain Report

LORENZO, Sixto Alfonso. II. Título.

The official law publication is calle BOLETÍN OFICIAL DEL ESTADO. It has it's

own web page, where free access to all the publisehed legislation is available, at:

http://www.boe.es/g/es/

A private institution providing an easier and also free access to an important part of

the legislation is: http://www.juridicas.com/