Can you buy an occupied flat? What are the risks?

Question

José Manuel Alburquerque · Accepted Answer

Yes. The purchase is valid and, as the new owner, you will be able to claim possession of the flat, but the seller will not hand it over to you with vacant possession. That is why the contract must state expressly that it is being sold occupied and who takes responsibility for the eviction, which is usually reflected in the price. The main risks are not being able to see the inside of the flat, the bank refusing to finance it and the eviction taking months or more than a year and costing money. Before buying, find out who lives in the flat and why, because the route to recovering it and how long it will take depend on that. Who lives in the flat Not all cases are the same: A tenant with a contract. The flat is let rather than occupied and you will have to respect the tenancy agreement, which is another matter. Someone the owner allowed to live there without paying, such as a relative. This is what the law calls occupation by permission (“precario”) and the flat is recovered through a possession claim against an occupier by permission (“desahucio por precario”). Someone who got in without permission. That is squatting, which has its own faster procedures. A tenant who has stopped paying and will not leave, the so-called “inquiokupa”. They are not a squatter. If the tenancy is still in force, you will take the seller's place and will have to seek eviction for non-payment. Ask the seller to prove who is occupying the flat, since when and whether a report has already been made to the police or the court, or a claim brought. How the flat is recovered in each case is another matter. The risks for you You will not be able to see the inside of the flat or check its condition. It may be damaged. Banks hardly ever finance the purchase of an occupied flat. Eviction takes time and costs money, because you will need a lawyer and a court agent (“procurador”). If the occupant claims to have a right to be there, such as a contract, even a false one, the matter can turn into lengthy court proceedings. If they are vulnerable, the judge can also suspend the eviction for a few months. Debts owed to the owners' association (the “comunidad de propietarios”) and unpaid “IBI”, the municipal tax on the property, left by the seller stay with the flat. If you buy through a company, you will not be able to use the fast-track civil procedure against squatting, which is only available to individuals, non-profit organisations and public social housing bodies. In addition, if you are a company or a large-scale landlord (“gran tenedor”), an owner with many homes, the rules are stricter. Seek advice before buying. How to protect yourself Before signing, make sure that: The contract states that the flat is being sold occupied, who is occupying it and who takes on the eviction and its cost. If it does not, you could have a claim against the seller for failing to give you possession. The price takes into account the cost of the eviction and how long it will take. If the seller has already reported the occupation or brought a claim, the contract provides that you will continue the proceedings. In a civil lawsuit you can ask the court to let you take the seller's place. Once the flat is yours, do not try to remove the occupant yourself or through companies that offer to do it by intimidation, because it may be a criminal offence.