What should you check before buying a second-hand flat?

Question

José Manuel Alburquerque · Accepted Answer

Before signing the deposit agreement (“contrato de arras”), the one signed when the down payment is made, check who owns the flat and what charges (encumbrances) it has, whether it carries debts owed to the owners' association (the “comunidad de propietarios”) or the town council, whether it has the paperwork required for a sale in Catalonia, what its planning status is, what condition it is in and who lives in it. Many of these things are not recorded at the “Registro de la Propiedad”, the Land Registry, so they have to be checked in other ways. If anything is left outstanding, the deposit agreement can make the purchase conditional on it being resolved. The notary checks the Land Registry again before the deed is signed, but by then you will already have made the down payment. The owner and the charges Ask for a land registry extract (“nota simple”), the summary the Land Registry gives of who owns the flat and what charges it has. It lets you check: That the seller is the owner recorded at the Land Registry. If not, for example because they inherited the flat and have not registered the inheritance, they will have to show why they are entitled to sell it. What charges it has, such as a mortgage, an attachment (seizure) or a right of way. Mortgages and attachments are usually paid off with part of the price and then discharged. That the description of the flat, especially the square metres, matches what is actually there and the Cadastre (“Catastro”). Debts and outstanding expenses Service charges. In Catalonia, under the “Código Civil de Cataluña”, the Catalan Civil Code, the flat is liable for unpaid ordinary and extraordinary service charges for the year of the purchase and the four previous years, even if they were owed by the seller. Ask the seller for the owners' association's statement of debts (certificate of being up to date) before signing the deposit agreement and do not waive it in the deed. Works and special levies already approved. Ask for the minutes of the most recent owners' general meetings, which will tell you whether there are works pending, approved special levies, which are extraordinary payments for works, or lawsuits involving the owners' association. The contract should state who pays special levies approved before the sale that fall due afterwards. The “IBI”, the municipal tax paid every year for owning a property. The flat is also liable for any IBI the seller has left unpaid, so ask for the latest paid bill and, if in doubt, a certificate from the town council setting out the flat's debts. In the rest of Spain, under the Horizontal Property Act (“Ley de Propiedad Horizontal”), the flat is liable for the service charges for the year of the purchase and the three previous years. The paperwork, planning and who lives in the flat The certificate of habitability (“cédula de habitabilidad”), the document showing that the home meets the minimum conditions for living in it. In Catalonia it must be valid in order to sell. The energy performance certificate, a copy of which is attached to the contract of sale. The planning status. Ask the town council for information to find out whether what was built matches the building permit, whether there are any open proceedings or whether the building has become non-conforming (“fuera de ordenación”) under a later plan. A flat can be properly registered and still have planning problems. The condition of the flat. If in doubt, view it with an architect or a building surveyor (the “aparejador”). What you can claim for hidden defects that come to light later is another matter. Who lives in it. If it is let, you will have to respect the tenancy agreement. If it is occupied, the risks are different. Whether anyone can buy ahead of you. The tenant may have that right and, in some sales, so may the Generalitat de Catalunya (the Catalan government), for example if someone acquired the flat after 9 April 2008 through mortgage repossession proceedings, whether the bank or the winning bidder at the auction, even if it has changed hands since then.