Is a sale made by private document, without a notary, valid?

Question

José Manuel Alburquerque · Accepted Answer

Yes. Between the people who sign it, it is valid, because the law does not require a public deed to sell a flat. With the contract and the handover of the flat, the buyer can already become its owner. But a private document cannot be entered in the “Registro de la Propiedad” (the Land Registry), so the buyer runs the risk that the seller, who still appears as the owner, sells or mortgages the flat to someone else or that the seller's creditors seize it. That is why a private document is usually just a step before the deed, like the deposit agreement (“contrato de arras”). Why it is valid and what it lacks The Catalan Civil Code does not require any special form to sell a flat. The private contract binds both parties and either of them can require the other to formalise it in a public deed. For the buyer to become the owner, there must be the contract and the handover of the flat, which can be done by giving the buyer the keys and possession. Signing the deed counts as handover, but handover can also take place in other ways. What a private document does not allow is registration of the purchase. The “Ley Hipotecaria”, the Spanish land registration act, only admits public deeds, judgments and other authentic documents to the Land Registry. Without registration, the buyer is not protected against third parties. The risks The seller still appears as the owner. If the seller sells or mortgages the flat to someone else who registers it in good faith, that person is protected and you will only be able to claim against the seller. The seller's creditors can seize the flat. You would have to defend yourself in court by proving that you bought first. As against third parties, the date of a private document is difficult to prove. If the seller dies or refuses to sign the deed, you will have to ask the seller or the seller's heirs for it and, if they do not sign it, bring a claim against them. Before bringing a claim, the law requires an attempt at negotiation. Nobody checks the identity and capacity of the seller, the charges (encumbrances) on the flat and the debts owed to the owners' association (the “comunidad de propietarios”), the consent of the seller's spouse or stable partner (in a “pareja estable”, the Catalan stable partnership) if it is the family home or the pre-emption rights of the tenant or of the Generalitat de Catalunya (the Catalan government). No bank will give you a mortgage on a flat that is not registered in your name. The tax on the purchase is still due from the signing of the private document and within the same time limit as if there were a deed. If you have already signed a private document Ask the seller to sign the deed as soon as possible, without waiting for a problem to arise. Keep the contract, the receipts for the bank transfers you paid with and anything that proves you use the flat, such as utility bills in your name. If the seller refuses, you can demand it in writing and, if no agreement is reached, bring a claim so that the court orders the seller to sign it.