1. Introduction
Navigating the complexities of real estate can be daunting, especially when dealing with an inherited property.
If you’ve recently inherited a home in Spain and discovered it’s not listed on the Property Registry (registro de la propiedad in Spanish), you’re probably wondering whether you can still sell it, or not.
In short, the answer is yes. But it has its complications. Read on to find out how you can maximise your chances of a sale and getting a good price.
2. Why Getting on the Property Registry Matters
While Spain doesn’t legally mandate the registration of a property, doing so does provide an extra layer of legal protection that benefits both sellers and buyers.
Properties listed in the Property Registry tend to attract more prospective buyers as it ensures you’re the legitimate owner and establishes your ownership tenure.
By registering, you protect yourself and the buyer from potential third-party claims against the property. Whether it’s creditors with claims against previous owners or dubious sellers misrepresenting property ownership, registration acts as a shield.
Plus, if the buyer needs mortgage financing, many financial institutions may require that the home be registered.
Overall, while selling an unregistered property is possible, it does come with its challenges.
3. Notarial Declaration of Ownership
Registering an unregistered property can be done through a domain procedure before a notary. This will help establish you as the property owner. The name of the procedure is the Notarial Declaration of Ownership.
Here is a detailed breakdown.
3.1. What is it?
The Notarial Declaration of Ownership is a procedure designed to certify the possession and ownership of a property over an extended period, especially in cases where no prior public deed exists or the property hasn’t been registered in the Land Registry.
3.2. Situations where it’s essential
This procedure becomes crucial in the following circumstances:
- When a property has been acquired based on continuous possession over a certain period (usucapión).
- When a property that has been in a family for generations was never properly registered.
- When direct registration of an old deed is no longer possible due to too much time having elapsed, for whatever reason.
3.3. The process, step by step
If you decide to register your inherited property through the Notarial Declaration of Ownership, there’s a clear path to follow, comprising six stages:
Step 1: Initiation
The process begins by contacting a notary. They will ask for a series of documents before the process can begin (see section 3.5).
Step 2: Submission of Evidence
Next, the notary will request evidence of your peaceful and public possession of the property for at least one year. This is a crucial starting point, as it establishes the basis for your ownership claim.
Collect and prepare all the necessary documents that prove your use and enjoyment of the property. This evidence may include:
- Tax receipts, such as the IBI (local property tax), for the past year.
- Utility bills in your name, showing regular payment and usage.
- Registration certificates or any other documents demonstrating your connection to the property.
Step 3: Witnesses
If possible, involve witnesses who can confirm the peaceful and uninterrupted possession of the property. Witnesses can provide essential testimony to support your claim. Ensure that they are willing and available to participate in the process.
Step 4: Publicity
Once you have gathered all the required evidence and witnesses, the notary will typically publicly share the procedure. This is done to ensure that any third party with potential rights over the property has an opportunity to submit objections. Publicising the process provides a fair chance for any interested parties to come forward.
Step 5: Conclusion
After the publicity period (typically a month), if no objections are raised and the notary is satisfied with the evidence of your peaceful possession, the next step is to sign the public deed of ownership declaration. This document formally acknowledges your ownership rights to the property. The notary will assist you in this process.
Step 6: Land Registry Inscription
Once the public deed of ownership declaration is signed, you can submit it to the Land Registry for inscription. This step officially records your ownership rights and provides legal protection against any future claims or disputes.
3.4. Tax obligations before registration
Before registering the property in your name, it’s crucial to pay relevant taxes, like the Inheritance and Gift Tax. Proof of these payments will be essential during the registration process.
3.5. Necessary documentation
In order to complete a Notarial Declaration of Ownership having inherited a property, you need a series of documents, including the death certificate of the deceased, a copy of the deceased’s identification and the aforementioned proof of payment or exemption of inheritance taxes.
Additionally, all heirs must present their personal identification documents.
Which further documents are needed can vary, mainly depending on whether the succession is ab intestato (if the owner died without a will or with an incomplete one) or by testament (with a valid will in place).
3.5.1 In the case of Intestate Succession (“ab intestato”)
In the case of intestate succession, the following additional documentation is required to carry out a Notarial Declaration of Ownership:
- Intestate heir declaration: an official document certifying who the legal heirs are according to the law.
- Deed of declaration of heirs: once the heirs are recognised, this document is formalised before a notary.
- Deed of adjudication of inheritance: a document where the assets are assigned to the heirs.
3.5.2 In the case of Testamentary Succession (By Testament)
In the case of testamentary succession (when there is a valid will), the following additional documentation is required to carry out a Notarial Declaration of Ownership:
- Last will of the deceased: the original or a certified copy of the will must be presented.
- Deed of acceptance and adjudication of the inheritance: acceptance of the inheritance as stipulated in the will is formalised before a notary.
- Documentation proving compliance with the “legítimas,” if applicable: evidence must be shown that the legal portions reserved for certain heirs have been respected.
In both cases, additional documents related to the property itself, such as the original property deed, certificates of no debt for mortgages, or local taxes, and other documents that the competent authorities or the property registry may require, may be necessary.
3.6. Costs
The property registration fees depend on the property’s value, and here’s a general breakdown.
- For properties valued up to €6,010.12, the fee is €24.040484.
- For properties with values between €6,010.13 and €30,050.61, the fee is €1.75 per €1,000.
- For properties valued between €30,050.62 and €60,101.21, the fee is €1.25 per €1,000, and so forth.
In general, you can anticipate spending between €300 and €500 for property registration, excluding any notary fees associated with formalising the inheritance.
3.7. Potential limitations and considerations
This notarial declaration isn’t a means to acquire properties. Instead, it’s a method to formalise a pre-existing status.
If there are uncertainties regarding the property’s ownership or potential third parties with rights over it, the process can become more complex. In such cases, resorting to judicial procedures might be necessary.
Typically, registering an inherited property can take around 15 working days. However, if there are objections or complications, the process can extend up to three months or even more.
Inheriting property in Spain? We can help!
For inheritance across international borders, it’s important to consult with experts in succession in Spain.
Navigating the various laws and procedures that are unique to this country can be a minefield. Luckily, at Costaluz Lawyers, we have the knowledge and expertise you need!
If you’re looking for clarity and to avoid legal conflicts, get in touch with us now. We can help!
Maria Luisa Castro
