The professionals involved in a real estate transaction in Spain

Although the intervention of the majority of professionals in a purchase and sale process is voluntary, when buying a property, whether it is a home, premises or a plot of land on which to build, it is advisable to seek advice from professionals who are experts in the field before signing any document.

There are several professionals operating in the real estate market and each one has certain limitations in terms of their intervention, so it is important to know the scope of action of each and every one of them.

Real estate agents

Estate agents or realtors are the commercial professionals involved in a sale or purchase.

The real estate agent has first-hand information about the market in which he or she intervenes, and therefore helps to determine the selling price of a property and knows the appropriate techniques for marketing the property. In addition, through his or her portfolio of clients, the estate agent is able to bring together supply and demand, finding buyers and sellers and facilitating the marketing process.

The job of the estate agent is to intervene in the market by finding a buyer for each property, or a property for each buyer.

In addition to the strictly commercial work, estate agents can sometimes provide additional services to their clients, so it is essential to know what services they will provide in exchange for the fees they will receive. However, their main task is real estate intermediation, and it is not compulsory for them to have legal training or to provide legal advice, which often makes the intervention of a lawyer necessary.

Furthermore, since 5 June 2000 (RD-Law 4/2000), real estate intervention has been totally liberalised, so it is not necessary for the Real Estate Agent to have any qualifications or belong to the Associations of Real Estate Agents.

Lawyers

The lawyer is a legal professional who intervenes by advising only one of the parties, guaranteeing that the transaction is legally safe for their interests.

Contrary to popular belief, the lawyer is not only used to file lawsuits but, on many occasions, to avoid them. The lawyer's duties include legal consultation, advice and counselling, as well as the drafting of legal opinions, contracts and other documents to formalise legal acts and transactions.

Of all those involved, the lawyer is the only one who looks exclusively after the interests of his client.

In a real estate sale and purchase, the specialised real estate lawyer will carry out the following actions:

1. Complete review of the legal situation of the property, making sure that there are no future problems. If you do not go to a specialised lawyer, the review they do may be insufficient because it does not cover the five real estate realities. In our reviews, we analyse the property from all legal points of view so that you know in detail the circumstances of the property you are going to acquire.

2. Drafting and negotiation of all documents to be signed. In law, it is as important what a document says as what it does not say, so they must be drafted (and read) by professionals who know how to interpret them.

3. Defending your client's interests. The lawyer is always an advisor to one of the parties, ensuring that the transaction is safe for that party.the lawyer is a legal advisor to one party, so he only advises his client, ensuring that the deal is safe for him. In addition, he or she will be able to resolve any legal doubts you may have in relation to the transaction first hand.

If you decide to hire one, look for one who specialises in real estate matters, as he or she will be better able to detect problems and solve them. Although a priori it may seem an unnecessary expense in the purchase and sale, bear in mind that if there were any problem with the purchase and you wanted to complain to the seller, you would probably end up in court, so it would be a late response, with high costs and success would not always be guaranteed.

Banks

The bank is the financial professional you need to turn to in case you need a loan to buy the property.

The bank will analyse the solvency of the client and the guarantees provided, in order to assess the viability of granting a loan according to certain criteria set internally by the bank itself.

The bank will analyse the viability of the loan and assess the guarantees offered by the client.

The main guarantee provided by the client is the constitution of a mortgage on the property to be purchased, so the bank will analyse whether this constitution is viable and whether it fits within its parameters, and may require additional guarantees if it deems it appropriate. 

However, the review of the property carried out by the bank only seeks to defend its guarantee, which means that, on occasions, it may not cover legal circumstances that it is essential to be aware of before buying a property.

Notaries

The notary is a public legal professional who, having passed a competitive examination, is empowered to give public faith. Although his intervention is not strictly obligatory, the legal effects of public faith make it highly advisable to formalise the sale and purchase in a public deed.

The notary verifies the capacity of the buyer and seller, attests to the act being carried out and can advise the parties, but always in a neutral manner.

In addition to attesting to the transaction, verifying certain matters and making a judgement of sufficiency, if no lawyers have previously been involved in the purchase and sale, the notary can legally articulate the transaction, although he will always do so in a neutral manner, trying not to benefit or harm any of the parties, and adhering strictly to what has been agreed, even if this may be contrary to the interests of one of the parties.

As a neutral jurist, the notary cannot give party advice in a sale and purchase. For this reason, it is often said that the notary informs, but does not give advice in the sale and purchase of real estate.

Gestorías

The gestoría is an administrative professional, whose intervention relieves the buyer of having to carry out the formalities subsequent to the purchase (payment of taxes, filing with the Land Registry, etc.). Although its hiring is voluntary, in the event that you need a mortgage loan, the Bank will entrust the subsequent processing of the deed of sale and mortgage deed to a gestoría (and from 2019, the bank will assume the cost), in order to guarantee the registration of your mortgage.

The gestoría takes care of the administrative formalities (settlement of taxes, processing of the registration, etc.). In case you need financing, the bank will impose one to ensure that the mortgage is registered.

Although their bill may seem very high (up to 15% of the purchase price), in reality the gestoría will set up a provision of funds, which will be used to pay for things on your behalf (taxes, notary's bill, Land Registry bill, etc.). When they have finished the paperwork, the gestoría must return all the documentation and any money left over after all the costs have been paid.

Land Registrar

This is another public legal professional. His or her intervention is voluntary, except in cases of constitution of mortgages and other rights in rem, whose registration is necessary for the validity of the legal act.

The Land Registrar is responsible for classifying and registering the rights in rem that are constituted over real estate, carrying out a second legal control.

In addition to registering the property, before the purchase, certain information about the property may be requested, in order to know part of its legal situation (the legal reality of registration). Having a property properly registered in the Land Registry increases its value and avoids setbacks for future transfers.

Architect

Finally, although it is not very common, it is advisable to have the services of an architect for two main reasons:

Because they can provide their expert opinion on the structural situation of the property (if that small crack is relevant or not, if the building may have aluminosis, etc.).

Because if you want to build or carry out a renovation with redistribution, your services will be necessary so that the property complies with the applicable regulations.

It is important to have an architect if you want to build or renovate the property you are going to buy.

It is especially relevant to have him or her involved from the first stages if what we are buying is a house to renovate or a plot of land on which to build, as he or she will be able to inform us of the different options we have (and which will influence the price).

From all of the above it can be seen that each of the professionals involved has a different and complementary mission with the other agents, which is why on few occasions (unless they expressly say so), they do not offer the services that would be provided by another of the professionals.