Although Spain is the favourite holiday destination for Britons and the most favoured expat destination (after Australia, US and Canada), cultural differences between British and Spanish people are greater than it may seem at first sight.
The Spanish and UK legal systems are also very different, and the expectations and assumptions that clients make of their lawyers are equally different.
Buying a property in Spain is, for many people, one of the most exciting and important investments they will ever make. It is not just about money, it is also about expectations and hopes of happy times. Can you afford to get it wrong?
Notary v Solicitor in Spain
Solicitors assist clients with UK conveyancing providing buyers and sellers with peace of mind that all relevant searches will be carried out and if there is anything to worry about it will be brought to the clients’ attention.
Prospective buyers of property in Spain soon learn that in Spain Notaries have a very important role to play. But clients quite often assume that a Notary will do a similar job in Spain to what a Solicitor do for UK conveyancing: this assumption is wrong.
To have the same level of protection you will also need to employ a Spanish Solicitor to carry out all the checks that Notaries do not carry out. In other words, to do in Spain what in the UK is done by a conveyancing Solicitor, you need to employ a Spanish Solicitor as well as having a Notary. Spanish Solicitors will be acting for you (whether you are the buyer or the seller) but not for the opposite side as a conflict of interest is likely to arise. However, the Notary acting for you must also be acting for the opposite side (completion can only take place if the same Notary if acting for both parties): you cannot have a Notary acting for the buyer and another Notary acting for the seller.
What is a Spanish Solicitor?
A Spanish Solicitor is a Spanish lawyer (“Abogado”). Solicitors in Spain tend to be less specialised than in the UK as they are usually Sole Practitioners (working on their own or in chambers with other lawyers) dealing with a wide range of legal matters. When we refer to a Spanish Solicitor in this article we have in mind a Spanish lawyer who is specialised and experienced in Spanish conveyancing and property law.
How to choose a Spanish Solicitor.
When choosing a Spanish Solicitor you ought to take into account the following:
- Make sure the Spanish Solicitor you have in mind has the relevant level of experience and expertise (i.e. is specialised and experienced in Spanish conveyancing and property law);
- Sometimes English firms of Solicitors hold themselves as expert in Spanish conveyancing when in fact they have no in-house Spanish Solicitors working in their firm or those working there are not specialised and experienced in Spanish conveyancing. Going to a UK based firm of Solicitors may seem to provide additional comfort for clients and in some cases that will be true, but simply choosing a UK based firm of Solicitors is not necessarily the best choice;
- Appointing a firm in Spain also has its risks. Even if you believe that the Spanish Solicitor that you have in mind is specialised in Spanish conveyancing and property law, the cultural differences and expectations may become a problem. Unlike in England where lawyers study a course subject entitled “Conveyancing” which sets out all the searches and steps that a UK Solicitor has to follow to fulfil his or her duties when dealing with conveyancing, no such course subject exists in Spanish Universities and thus different Spanish Solicitors may do some but not all relevant searches. Also quite often Spanish Solicitors are used to their Spanish clients making certain checks on their own and only requesting assistance from their lawyers on certain specific aspects. The risk of appointing a Spanish firm is that your expectations and requirements will get lost in translation and cultural differences. You may be assuming that your Spanish Solicitor will do a similar job in Spain to what your UK Solicitor does for your UK conveyancing but in fact that is unlikely to be the case.
- And of course language could also become a barrier when explaining or understanding legal subtleties.
- Try to avoid using a Spanish Solicitor recommended by the estate agent (or developer). If your lawyer is too cosy with an estate agent (or developer) because they send your lawyer many clients, then your lawyer is likely to be more concerned about upsetting the estate agents (source of work) than about telling you any problems with the property.
- Insurance: whilst lawyers practising legally in Spain will have professional indemnity cover for any negligence (mistakes) the level of cover may be lower than what you expect and generally Spanish insurance companies are unlikely to accept liability even if on the face of evidence it is a clear case of negligence; for you to claim you may need to issue court proceedings in Spain (for which you must have legal representation). And may lawyers in Spain refuse to represent clients if they are making a claim against another lawyer.
Surely appointing a Spanish Solicitor local to the property must be safer, right?
Well, not necessarily. You do not want the lawyer that you appoint to be too close to the opposite side, or to the estate agents, or to the local builders.
Most searches can be carried out remotely (internet, telephone, fax etc) and being local to a town or village is not a strong enough reason to appoint someone as your Spanish Solicitor.
But I had a fixed quote from a Spanish Solicitor which is cheaper and less scary than paying an hourly rate.
Although it may not always be the case, you know what they say: if you pay peanuts you will get monkeys…
We all like to hunt for a bargain, but the reality is that a lawyer who is specialised and experienced in Spanish conveyancing and property law, who spends the amount of time required to carry out all relevant searches, explains matters to you and answers your questions (whatever the outcome of the searches, whether they show serious and complex problems or whether it is all ok and straightforward) is not likely to give you a cheap fixed quote. And a lawyer who at the time of gving you a cheap quote makes the mistake of assuming the matter will take a lot less time than it actually requires is unlikely to do a good job if he or she knows is not receiving fair pay for all the work involved.
And of course, the is the issue of cultural differences: I have heard so many Brits complaining that their lawyer in Spain never answers emails or takes telephone calls… Well, if your lawyers give you a fixed price (rather than charge on a time basis) they will probably want to cut corners and not spend time answering your questions and providing you with updates. When you are keen to secure a property, this situation can be incredibly stressful for you and soon what it started as your lifetime dream can become a horrible experience. What you need is a lawyer to keep you informed and explain the reasons for any concerns or for any delay, any risks and the options that you may have.
What’s the answer then?
There is no single right or wrong way to choose your lawyer, but we suggest that you appoint a firm which:
1.- Is completely independent and has no vested interest with any of the parties, agents or builders and will look after your interests above the interests of anyone else;
2.-Has the relevant in-house expertise and experience;
3.- Understands what your expectations from a conveyancing Solicitor are and who can explain the outcome of all searches and any risks involved if you proceed, in a way that you can completely understand;
4.- Has the relevant level of insurance and if needed you can make a claim in the UK without the additional difficulty of litigating in Spain or even finding lawyers there willing to act for you.
Our firm, Manuel Martin & Associates can offer you all the above. If you contact us with details of the property you are intending to purchase or to sell we will provide you with a free estimate without obligation.