Seasonal lets: an alternative to holiday rentals

Raymundo Larraín Nesbitt, October, 8. 2017

Lawyer Raymond Nesbitt goes on to explain how seasonal lets can be a viable alternative to holiday home rentals in some instances.

By Raymundo Larraín Nesbitt
Director of Larraín Nesbitt Lawyers
8th of October 2017

 

 

 

Photo: Cala Llombards, Majorca, Spain.

 

Introduction

Are you fed up with the intrusive and obnoxious new regulations on private holiday home rentals in Spain? *cough* Balearics *cough*

Did you know that, at times, landlords can circumvent these restrictive regional regulations offering their properties as seasonal lets instead? I.e. no rental licence is required. Were you aware that thousands of properties all over Spain are rented out legally every year as seasonal lets to tourists without much of a hindrance?

Interested? Read on.

Definitions, definitions

  • Holiday-home rental: short-term contract that spans between a day and a month (varies between regions in Spain). Accommodations are offered through touristic channels (see further below) such as online property portals with an online booking system.
  • Seasonal let: is a type of contract whereby a landlord rents a property not as a permanent abode. It can be either short-term (days, weeks) or long-term (months, years). Seasonal long-term lets are NOT subject to the raft of tenant entitlements set out by Spain’s Tenancy Act (which only apply to rentals that constitute a permanent abode) and most certainly do NOT require a rental licence.

 

Comparison: Holiday Home Rentals vs. Seasonal Lets

 

 

Private holiday home rentals

 

Seasonal let

 

Applicable law

regional holiday home regulation

Spain’s Tenancy Act (LAU)

Rental registration required

yes

no

Rental licence required?

yes, in some regions i.e. Balearic Islands

no

Urban property

yes

yes

Rural property

no

yes

Commercialization (offer)

touristic channels

forbidden to use touristic channels

Online booking system

yes

no

Accommodation time

less than 2 months (varies between regions)

no time limit (days, years)

Can you rent out individual rooms?

yes

yes

Guest number limitation

yes

no

Accommodation mandatory requirements

yes i.e. bed cleaning, A/C

no

Place of permanent abode

no

no

Tenant entitlements

no

no

Rental deposit

varies

two-month rental

VAT

usually exempt*

exempt

Subject to regional property inspections

yes

no

Fines (non-compliance)

humongous. Varies significantly between regions.

no

Civil liability insurance required?

yes, in some regions

no

Forbidden to rent out

 yes, in some regions

no restrictions

Enforced

locally (with regional variations)

nationwide

Licence of First Occupation required?

yes

yes

Rental tax relief available?

yes

yes

Tax on rental income to be declared and paid in Spain?

yes

yes

 

 

Advantages of a seasonal let

  • No registration necessary: registration of the property for rental purposes is not required.
  • No rental licence required: you do not need to attain a rental licence from the Authorities.
  • No expensive improvements: you don’t need to install in your property WIFI, A/C, hire insurance to comply with the law.
  • No property inspections: your property will not be subject of inspections by the regional Authorities.
  • No fines: unlike holiday homes, seasonal lets are not liable to be fined by inspectors.
  • No time restriction: unlike holiday homes, you can rent out for more than 2 months. You have the flexibility to rent out either short or long term.
  • No intermediaries necessary: you will not be paying any commissions.

 

Disadvantages of a seasonal let

  • You need to build up your own client base: if you are reliant on third parties (holiday platforms) to provide you with clients (as most landlords are), you cannot benefit from a seasonal let, sorry.

 

* With or without VAT?

In principle, as a general rule, VAT is not applied to holiday rental homes. However, if you offer any of the following below your rental may be regarded as assimilated to offering hotel accommodation in which case you need to invoice everything with VAT which impacts the profit margin of the business increasing its costs:

  • Concierge service.
  • Daily changing of bed linen.
  • Daily changing of bath towels.
  • Daily cleaning of property/room.
  • Room service (food and beverage), catering.
  • Bed & Breakfast.
  • Other ancillary hotel services such as: daily press, laundry cleaning, luggage storage service, accommodation booking (holiday reservation).
  • Other.

 

What is understood by ‘Touristic Channels’?

It is a bit of a grey area to be honest and may vary from one region to the next. Almost every region in Spain has approved specific regulation on what is understood by private holiday rental homes. Regulations vary from one region to another; you are strongly advised to seek legal expertise on your particular region. More details in my article  Holiday Rental Laws in Spain for a full region-by-region list of approved holiday home rentals. Offering a property through a touristic channel automatically tags it as a holiday home subject to strict regional laws.

As a generalization, if a property is offered with any or all the following points it is regarded as being advertised through a touristic channel:

  • It is marketed and offered by intermediaries. It is understood as companies or professionals who mediate between landlord and tenant in exchange of a commission such as: travel agencies, real estate agencies, online property portals (i.e. Airbnb, HomeAway, Tripping, Tripadvisor, Flipkey, VRBO etc.).
  • Online reservation system enabled. Bookings can be viewed and made over internet.

 

Does this article mean that landlords have carte blanche to simply sidestep stern regional holiday regulation at their whim using seasonal lets instead?

No. It takes a case-by-case approach. Not everyone will qualify for a seasonal let e.g. landlords who market their properties through touristic channels.

Talk to a lawyer, we can confirm if you can benefit from it and draft a contract for you.

Do I need to declare and pay tax on my rental income in Spain in both cases?

Yes.

We have a competitive taxation service that deals with Holiday Home Accounting Service (HRAS).

On average, we are able to reduce a landlord’s rental income tax by 40% using tax relief (also available to non-residents). Ask us.

 

Conclusion

Most landlords wrongly assume they must rent out their Spanish property to tourists in compliance with all the new batch of regional rental laws featured in the press - which is simply untrue.

For decades, landlords all over Spain have been letting their properties out to tourists using seasonal lets without a problem. Seasonal lets at times are by far a superior option than renting out as a holiday home. In some regions in Spain the requirements of the new rental laws are so overzealous (read daft) that you are expected to offer a private home on par with the services offered by a four-star hotel. Seasonal lets cut through the red tape and may save landlords thousands of euros on the long run.  

Not all landlords are required to offer their properties as holiday home rentals and comply with the cumbersome (and often expensive) new regional rental regulation. In some instances, landlords would be far better off to simply offer their properties as seasonal lets which do not have associated restrictive requirements i.e. you don't need to install A/C in every room (Andalusia), you don't need to attain a rental licence (Balearic Islands), you do not need to hire an insurance cover etc.

Seasonal lets exist since 1994 and you never hear landlords complaining over them - that should tell you something.

On the other hand, regional holiday home laws are fairly new (post 2013) and you hear most landlords moaning bitterly on them; or worse, not being allowed to rent out because they do not meet the stringent requirements set out in these laws!

You may be surprised to learn you can opt for a seasonal let instead saving yourself considerable time, money and hassle. You could avoid home inspections and steep fines altogether!

In some cases, even landlords who are forbidden to rent out their properties under the current regional holiday home regulation may be stunned to find out they can in fact rent them out as a seasonal let without much of a problem!

Don't be goaded into using new rental contract types that only exist for the benefit of powerful hotel lobby groups. Be smart and make it easy on yourself – speak to professionals!

Be proactive, talk to a lawyer. We can make it happen.

 

“Hecha la ley, hecha la trampa.” – Spanish saying.

 

Loosely translated as “for every law, there is a loophole.”

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in conveyancing, taxation, litigation and inheritance. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form to book an appointment.

 

Article originally published at Spanish property Insight: Seasonal lets: an alternative to holiday home rentals.

 

Legal services Larraín Nesbitt Lawyers can offer you

 

Holiday-home letting related articles

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

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New Balearic Islands Holiday Rental Law

Raymundo Larraín Nesbitt, September, 8. 2017

Lawyer Raymond Nesbitt briefly explains the new landmark amendments made to Balearic Islands' Holiday Rental Law (Law 8/2012).

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of September 2017

 

 

 

 

Introduction

The Balearic Islands Administration has recently approved Law 6/2017, of 31st July 2017 which introduces a batch of significant changes to its 2012 Tourism law. These changes came into force on the 1st of August 2017, on the day after they were published in the Balearic Islands Official Law Gazette (BOIB).

Because of how significant I think they are, and their wider impact on the short-term Balearics rental market, I am compelled to devote September’s article to shed some light on them. To clarify, this is not a new law that has been passed, they have simply amended 2012 holiday rental law. As this law was passed five years ago, I will not be analysing it as everyone should already be familiar with it and I already mentioned it in my recap article of 2015 Holiday Rental Laws in Spain.

I will briefly highlight the major changes to my mind without going into the minutiae.

 

EDIT 12th September: As reportedly there seems to be some confusion over my text, for which I profusely apologise, I will try to clarify the situation.

The confusion stems from readers not being familiar with the Balearics Tourism law of 2012, which I already mentioned I would not be analysing in this article. My article may seem baffling if you are unfamiliar with said law because I took for granted readers already knew it as it is a five-year-old law (which clearly was my mistake).

The matter of holiday homes is highly controversial amid Balearic politicians. This bill has been consensuated by political parties with opposing views and some of them even abstained from voting it in open disagreement with its thrust. Whereas some political parties welcome the idea of private holiday home rentals, others want to outright ban them. As a reflection of these polarising views, the bill is cobbled together with inherent contradictions which lead to some grey areas and confusion.

All existing rental or tourism licences are valid, regardless of whether you are resident or non-resident. So, if you have attained already a tourism licence you can continue business as usual. Going forward, this bill sets a one-year moratorium on issuing ALL new rental licences (Declaraciones Responsables de Inicio de Actividad Turística or DRIATS for short) for both detached properties and tenements within a community. Consells Insulars and town halls will now need to determine in their planning zones which areas are apt for private holiday home rental.

A new rental modality has been introduced for main homes where the landlord has his habitual residency. In other words, you must be resident in the Balearics to rent out your property as a holiday home under this new modality (the exact terms are unknown and will be developed by further regulation). To attain this new type of rental licence you must comply with the requirements I set out in my text below. Does this imply that non-residents can no longer apply for rental licences? No, it doesn’t mean that.

After the one-year moratorium has elapsed, hopefully the local Administrations will have defined clearly the boundaries of the new touristic areas where new rental licences may be issued (for both residents and non-residents alike). Any property outwith the specially earmarked ‘tourism zonings’ will not be able to attain a coveted rental licence (with the only exception if they already had one issued before this regulation was passed last August).

The logic behind this new rental modality, exclusive to residents, is to allow locals, who apparently are struggling to meet their mortgage repayments (sic), to make a supplementary income renting out their properties to tourists for a maximum of 60 days within a calendar year. Additionally, locals allegedly struggle to find affordable accommodation, particularly in Palma and Ibiza, which has sparked a social backlash on holiday homes this summer and Tourism in general. This public outcry has led local politicians to seek a sustainable tourism growth model which apparently has already hit a glass ceiling in the Balearic Islands.

The pervading idea behind the bill is to restrict furthermore rental licences and even go as far as to reduce them gradually over the next years. By the same token, new draft laws will restrict the number of properties a single individual can rent out to avoid speculation and concentration of properties in few hands which drives rental prices upwards (tut mir leid, Bettina). Year-on-year holiday home rental prices have increased by a whopping 40% in Palma city alone.

Batch of changes

 

Holiday-home

  • A new rental modality has been introduced which requires the landlord to be resident to rent out. Only properties that constitute the permanent residence of a landlord can be rented out under this new rental type! Let us examine the significance of this with an example for ease of comprehension: a British national resident in the UK, who owns a second holiday home in Port Andratx, may NOT rent it out as, by definition, he is a non-resident and it is not his main residence.

 

       These properties can only be rented out for a maximum of 60 days within a calendar year. The landlord must have applied and attained a most sought-after rental licence issued by its consell or local town hall which is entirely at the discretion of the local Administration and is contingent on the zoning of your property (PIAT) and if it is earmarked as suitable for holiday rental.

       This new law introduces an overall capped number of beds (currently set at 623k) with each island being assigned a quota. This figure is planned to be reduced gradually over the next years by as much as 100k. No new rental licences will be issued over the next year until the touristic planning zones are determined by the town halls.

    Oh, and I forgot to add that even if you manage the herculean feat to attain a coveted rental licence, the rental permission is renewable every 5 years providing you fulfil all the requisites – again. Meaning after five years they may not renew it, in which case you can’t rent it out after all.

  • When the property is marketed, in all publicity it should clearly state the rental code of the property.
  • A novelty of this bill is to allow for the first time ever for properties within a Community of Owners to be offered and marketed as private holiday homes. This can only be done if the majority of the property owners have approved it in a General Assembly and this agreement has been lodged at the Land Registry. In other words, if a Community of Owners forbids the use of properties as holiday homes a landlord cannot (lawfully) rent out his property (in the Balearics).
  • The person who markets the property must inform the Police of every lodger of age 16 and over in compliance with Spain’s Security law.
  • Short-term lets are restricted to 30 days (one month) to the same tenant and may not surpass this limit.
  • Only properties with a minimum of 5 years antiquity can be marketed as holiday homes (unless specific regulation states otherwise) and must have been used as a private residence.

 

Fines

  • Unlicenced holiday rentals (clandestine lettings): Landlords who offer rental holiday homes without having a rental licence issued by the Administration can now be fined between €20,000 to €40,000 (per property!).
  • Failure to communicate to the Administration change of property ownership on holding a rental licence (selling property). May result in fines of up to €4,000.
  • Serious offences: are now fined between €4,001 to 40,000.
  • Very serious offences: are now fined between €40,001 to 400,000.

 

Registering your holiday home to pre-empt fines – You can still be fined for non-compliance!

It should be noted that the fact you apply for a rental licence while you wait for it to be issued by the consell does not exclude you in any way of being fined in the interim.

Moreover, as I care to explain in my blog post regarding the region of Andalusia, if you apply for registration but you lack some of the prerequisites (i.e. your property does not have a mandatory Licence of First Occupation issued, article 50) you are breaking the law and you will be (heavily) fined by the Administration. Which is why I advise all landlords not to register their holiday homes unless they are fully compliant. Ignorance on the law’s finer terms will not be accepted as an excuse not to be fined.

Conclusion

If you are looking to buy property as an investment in the Balearic Islands (Mallorca, Ibiza, Menorca and Formentera) and plan to rent it out short-term, you may want to look elsewhere in Spain.

Pushed by a lack of affordable accommodation for natives, local politicians seek to limit the ability of property owners to rent out their properties as holiday homes; specifically targeting non-resident landlords. Clearly this matter is a serious local problem, but I question the right approach is to limit the ownership rights of property owners. I venture that limitation on planning permits and adopting a sustainable development growth model would perhaps be a more advisable alternative (read investor-friendly) as opposed to curtailing owner’s rights.

The changes brought about will also have unforeseen market consequences, possibly drumming up speculation, as properties within areas apt for holiday home rentals will likely be more valuable than identical properties in excluded areas from private short-term rentals.

This new regulation is so restrictive and has associated such stiff fines that it is honestly not worth all the hassle and risk of getting caught red handed without a rental licence. Many other regions in Spain (i.e. Andalusia) have more landlord-friendly regulations with laxer terms and lenient fines in comparison. Not to mention how they have enabled a system of online whistle-blowers with a whiff reminiscent of the best the U.S.S.R. had to offer the world, not. These measures have Kim Jong-un’s seal of approval.

This new regulation unabashedly wants to paint into a corner private holiday rentals, demonising them, making them a most unattractive proposition. It will likely be the death knell of the burgeoning private holiday rental industry in the Balearics on the heels of dubious local political interests. This new regional law in my opinion is borderline unconstitutional as it is a frontal attack to private property which is a legal right enshrined in art. 33 of the Spanish Constitution. Furthermore, it induces pernicious asymmetrical inequalities in regional holiday home regulation which may have a broader impact on foreign investment diverting funds to other more investor-friendly regions in Spain to the detriment of the Balearics.  

I will self-restrain myself and resist the urge to comment on the attack to a free market economy and how these measures (artificially) stifle competition. I had already ranted at length on these counterproductive consequences and who they (really) benefitted in my articles of 2013 New Measures to Bolster Spain’s Ailing Rental Market and in 2015 Holiday Rental Laws in Spain. Unfortunately, time has proved me right in all my comments.

Ultimately, it may be needed for the State itself to step in decisively and curb the law-making enthusiasm of regional politicians; centralising regulation of holiday home rentals under common standards to iron out provincial lopsided regulation. This would be truly ironic, given how the Government itself in 2013 opened the legislative floodgates, leaving the door ajar for all regions in Spain to pass new laws on private holiday rentals. The Government should backtrack on its (derailed) policy and rein in legislative power on a matter of national importance to the Spanish economy.

Regardless, if you still remain unconvinced by my remarks and decide to fearlessly plough ahead and rent your property out, I strongly advise you to take legal advice on your Balearics holiday home rental as the new laws in place are so complex and the fines on non-compliance are humongous.

I should clarify this new law should not affect your decision-making if you are simply buying property in the Balearics with a view to enjoy the property yourself (in lieu of renting it out as a holiday-home). Balearics is a beautiful place to live in, despite its delusional politicians.

 

“Politics: the art of creating new problems where none existed.”

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Article also published at Spanish Property Insight: New Balearics Holiday Rental Law

 

Legal services Larraín Nesbitt Lawyers can offer you

 

Holiday-home letting related articles

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. No delusional politician was harmed on writing this article. VOV.

2.017 © Raymundo Larraín Nesbitt. All rights reserved.

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Legalising Unregistered Property Extensions

Raymundo Larraín Nesbitt, August, 8. 2017

Lawyer Raymond Nesbitt briefly explains how to go about legalising unregistered property extensions and the consequences of not doing so.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of August 2017

 

                                                                                                                                     

 

Photo courtesy: Kingspan Insulation Ltd

Introduction

Often, with a view to sell, property owners decide to make improvements or extensions to their Spanish properties to make them more attractive to prospective buyers. Adding an outbuilding in the garden next to the pool, adding a few additional guestrooms, adding a toilet, building a cellar with home cinema or an in-door heated swimming pool all sound harmless and like a great idea on paper. Surely these improvements add value to the property, making the prospect of selling them far easier, yes?

The fact of life is that if these improvements are not carried out following the correct legal procedure they may become a perfectly good waste of money or even be counter-productive to selling your home.

In this article, I explain what are the legal consequences of unregistered extensions and how to go about legalising them.

 

Legal consequences of unregistered property improvements

There are several risks associated, with varying degrees of importance, of not following the statutory legal procedure; I will list them as bullet points.

  • You can be fined. Should your town hall catch you undertaking non-sanctioned improvements on your home you can be heavily fined and even be required to pull down the improvements at your own expense.
  • You may be criminally prosecuted. You may even face the daunting prospect of a State prosecutor instigating criminal proceedings against you dependent on the illegality committed. This is particularly true of rural property. Please read my article on the matter: How to Buy Rural Property in Spain.
  • You may be forced to pull down the improvements at your own expense.
  • Unregistered extensions are uninsured. Should they collapse, you have no legal recourse against them. Legal extensions will be covered by insurance.
  • You can´t borrow money against the improvements on the property (or not enough money). Should you require to raise capital to face medical treatment, for example, a lender is going to offer you significantly less money if you have not registered the extensions or improvements made to your property.
  • Unregistered extensions at the Land Registry do not exist legally. This has very important practical consequences, particularly on selling a property. In other words, only accurate property descriptions matching reality at a Land Registry are deemed legal. This translates in practice into significantly reducing the pool of buyers for your property, something nobody wants; more so on a challenging sales environment. Most buyers require finance to acquire a property (i.e. mortgage loan). Lenders will offer borrowers considerably less money to acquire a property with non-registered extensions as these are non-existent for all intents and purposes.

 

Making it easier on us, let us examine it with a practical example. If a rural property is being sold with a modern two-storey villa of 450 m² in a plot of 10,000 square metres (€1.5mn) albeit on paper (Land Registry description) it is actually a vintage cortijo of 80 m² (€120k), a lender will only be able to finance a fraction of the asking price. Meaning a buyer will be facing a huge shortfall in the money required to close the gap. Consequently, the deal will likely fall through because of lack of finance. What we can glean from this example, is that what is not lodged at the Land Registry simply does not exist legally to lenders and no money can be borrowed against it.

  • Some extensions require a Licence of First Occupancy (LFO, for short) without which a property cannot be lived in or rented out. So, for example you cannot receive income letting it out as a holiday home.
  • You may not be able to apply for utilities. As a result of not having attained a LFO, the property may not qualify to apply for utilities.

 

Profile on the legal procedure to register extensions and improvements

  • Contact an architect to draft a building plan.
  • Hire a lawyer.
  • File and pay for a town hall’s building licence (major or minor works).
  • Attain a certificate of end of works.
  • Register the extension/improvement in a deed at a Notary Public.
  • Register the updated deed at the Land Registry.

 

Conclusion

Registering extensions and improvements is in a property’s owners’ best interests as these will be made legal and will allow him to fetch a more attractive sales price for his property.

Bottom line, for your own good, your Title Deed must reflect and match exactly your property’s description. If this is not the case, you must hire a lawyer to amend your Title Deed and adapt it to reality to legally sell your property or to apply for a loan against it.    

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Article originally published at Spanish Property Insight: Legalising Unregistered Property Extensions

 

Legal services Larraín Nesbitt Lawyers can offer you

 

Related articles

 

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

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Holiday Home Taxation in Spain

Raymundo Larraín Nesbitt, July, 8. 2017

Lawyer Raymond Nesbitt gives us an outline of Spain´s taxation on holiday home rentals (buy-to-let).

The following article has been greatly simplified to avoid unnecessary tax technicalities. The quoted tax rates are subject to change from one year to the next. Seek professional legal advice on your matter – see disclaimer below.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of July 2017

 

Introduction

After a decade in the doldrums, Spain’s real estate market is once again picking up the pace showing indelible signs of warming up, spearheaded by Madrid and Barcelona. The market seems to be staging a comeback in full swing which is a welcome respite.

  1. Asking rental prices are soaring by two digits year-on-year as reported by experts. The exact figure is contentious, as some prestigious media, like El Pais daily, quote a 21% annual increase whilst others, such as El Mundo daily, estimate the national average rental increase to be at 10.2%. In any case, minutiae aside, the consensus is clear and unanimous that we are witnessing a whopping two-digit rental growth in asking rental prices year-on-year:

 

  1. Capital appreciation of well-located real estate is also rising fast (in some coastal areas by two digits).

 

The average rental yield in Spain can be expected at 5% pa (dependent on location). If to that you also add the potential of capital appreciation, Spanish real estate is poised for combined two-digit gains over the next years easily winning alternative investments and paltry fixed returns in a context of historic ultra-low interest rates.

Bottom line, go bricks for the win.

Limelight on Spain - why is it such an attractive place to live (and invest) in?

Spain is the world´s third country to attract more tourism (trailing closely behind the US and France) with over 68 million tourists as compiled by the United Nations World Tourism Organization annual barometer. An all-year-round mild weather, beautiful unspoilt scenery, great food, friendly natives, modern health and transport facilities, amenities and a rich cultural background make Spain a touristic hotspot to be reckoned with.

And last, let us not forget Spain´s renowned beaches. For almost 30 consecutive years Spain has led the world-ranking of Blue Flags awarded by the independent Foundation for Environmental Education with over 561 in 2015 trumping its closest competitor. Blue Flags are only awarded after meeting stringent requirements and are an indication of their high environmental and quality standards.

It is in this financial context that investors are showing increasing interest in the potential of buy-to-let properties in Spain. A burgeoning real estate market coupled with a consolidated tourism industry is luring investors to foray into the market in droves with a renewed sense of self-confidence.

Holiday Rental Homes – Definition

What exactly qualifies as a holiday rental home or vivienda vacacional in Spanish? Spain is made up of 17 autonomous regions with devolved competencies on this matter. Many of these regions have passed on their own laws on what is classified as a holiday rental home. You can read further on the matter in my article Holiday Rental Laws in Spain – Explaining the Latest Changes. As an example, Andalusia approved last year its own regulation: Andalusia's Holiday Rental Laws (Decree 28/2016).

Basically, and take good note I am generalising, holiday rental homes are let for short periods of time which vary between one day up to several weeks. The main point is that they are not regarded as the permanent abode of a tenant which is referred to as ‘guest’ or ‘lodger’ rather than tenant (as opposed to long term lets). Take note that in this article I am expressly ruling out dealing with what are known as apartamentos turísticos or touristic lets which have their own regulation and set of rules.

Landlords would do well to acquaint themselves with the regulation of the autonomous region where their property is located in Spain as some of them have stringent rules in place which require the property to be registered in an official registry and other regions even go as far as demanding a touristic rental licence from landlords without which you simply cannot rent out. Fines for non-compliance vary, but we warned you could be landed with a steep six-figure fine or even having a charge placed against your property. Some regions, such as Barcelona, have taken the matter to heart with the town hall employing over forty inspectors trawling websites and doing the legwork to flag unlicenced holiday rentals and fine them. It is estimated there are 17,000 holiday rentals in Barcelona alone of which 7,000 are deemed illegal.

Holiday Rental Homes – Registration

In Spain, it is mandatory most regional authorities require landlords to register their properties in a Tourism Registry. Requirements vary from one region to the next but in general a Licence of First Occupation is a chief requirement to let. Breach of these rules may attract humongous fines such as those levied on AirBnb in the hundreds of thousands.

Our law firm offers a Registration of Holiday Rental Homes service.

Holiday Rental Homes – Taxation

Holiday rental homes are, by definition, short-term lets. Tenancies exceeding two months fall under Spain´s Tenancy Act and are regarded as long-term lets which give way to a great number of tenant entitlements landlords should be keenly aware of.

In Spain, all joint owners of a property are treated as individualised taxpayers. Landlords need to file a quarterly tax model in the first 20 days of every January, April, July and October.

In other words, one tax model needs to be submitted for each (joint) owner and also one for each guest. By guest it is understood as the leader of the group, he who pays the rental (not for every person lodging in a group).

Short-term landlords will additionally also be required to file an annual tax model (Non-Resident Imputed Income Tax).

As a recap, on renting out in Spain (whether long or short term) you have to pay two taxes:

 

I) Resident in E.U. or E.E.A.

Tax rate: 19% on rental income.
Tax relief: Yes, physical persons may deduct, for example, home insurance, mortgage loan interest payments, property maintenance expenses etc. Legal persons may also deduct rental-related expenses.
Dates: collected annually or quarterly.
Tax form:

II) Resident outside the E.U. or E.E.A.

Tax rate: 24% on rental income.
Tax relief: no.
Dates: collected annually or quarterly.
Tax form:

As can be gleaned, this can become tedious and very admin intensive for the average landlord. Which is where lawyers step in offering our legal and accounting services to cut through the red tape for a very competitive fee.

More information in my article Non-Resident Taxes in Spain.

With or without VAT?

In principle, as a general rule, VAT is not applied to holiday rental homes. However, if you offer any of the following below your rental may be regarded as assimilated to offering hotel accommodation in which case you need to invoice everything with VAT which impacts the profit margin of the business increasing its costs:

  • Concierge service.
  • Daily changing of bed linen.
  • Daily changing of bath towels.
  • Daily cleaning of property/room.
  • Room service (food and beverage), catering.
  • Bed & Breakfast.
  • Other ancillary hotel services such as: daily press, laundry cleaning, luggage storage service, accommodation booking (holiday reservation).
  • Other.

 

Holiday Rental Homes – Non-Resident Landlord Rental Tax Relief

Recent ECJ rulings have created in their wake new opportunities for (physical) non-resident landlords to take advantage of tax relief in equal footing to Spanish nationals which were previously barred to them.

Please read my two articles on the matter which clearly explain how landlords*, with the support of our law firm, can take advantage of tax rules greatly mitigating their tax bill:

Renting in Spain: Non-Resident Landlord's Rental Tax Relief – 14th of January 2017

Renting in Spain – Landlord's Taxation Guide – 21st of December 2016

*Non-EU landlord nationals are barred from benefitting from lenient tax relief.

 

Through our dedicated service Holiday Rental Accounting Service (HRAS) we are able to reduce - on average - 30 to 40% of a landlord's taxable base on renting out property in Spain. Ask us.

Conclusion

As can be clearly surmised from the above, the taxation on private rentals may be somewhat convoluted given the fact that 17 different Autonomous Regions in Spain hold competence over them and rule accordingly. This requires the input of seasoned professionals to wade through the labyrinthian pitfalls and come out successfully.

Which is where we lawyers step in; hand-holding landlords and guiding them through the taxation ordeal to come up on top, working the system.

 

We offer the most competitive fees in the market.

Holiday Rental Accounting Service (HRAS) from only €125/tax quarter

We are specialized in taxation

 

“90% of all millionaires become so through owning real estate.” – Andrew Carnegie

Andrew Carnegie (1835 - 1929). Born in Dunfermline, Scotland, this 19th century Scottish self-made multimillionaire emigrated to the US at a young age. Carnegie led the expansion of the American steel industry in the late 19th century and through a string of savvy investments is often identified as one of the richest people and Americans ever. He will always be remembered for becoming a leading philanthropist for the United States and the British Empire giving generously to foundations, charities and university endowments.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Article also published at Spanish Property Insight: Spain Holiday Home Taxation

 

Legal services Larraín Nesbitt Lawyers can offer you

 

Holiday rental related articles

 

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.017 © Raymundo Larraín Nesbitt. All rights reserved.

 

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Power of Attorney Explained

Raymundo Larraín Nesbitt, June, 8. 2017

Lawyer Raymond Nesbitt explains what a Power of Attorney is, who needs it and how to get one.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of June 2017

Introduction

On buying property in Spain, your appointed solicitor will suggest you sign a power of attorney (POA) giving him power to act on your behalf.

In this article I will explain briefly, strictly from a conveyancing point of view, the usefulness of signing a conveyance POA over to your lawyer.

What is a Power of Attorney?

It is a deed witnessed by a Notary public whereby a grantor (principal) confers a mandate to a third person (agent) to act on his behalf. The principal is bound by the actions carried out by his agent.

What types of POA are there?

Broadly speaking, there are several. For this article’s sake, I will only focus on conveyancing POA. But there are many more used in litigation, to administrate the estate of mentally unsound individuals (legally incapacitated), inheritance matters, lasting power of attorney, corporate, investments etc.

 

 

Content of a POA

POA can be either specific or broad.

An example of a specific POA can confer a mandate to apply for a NIE number on behalf of a client.

An example of a broad POA is one which confers ample powers to administer the estate of someone.

Specific Focus on Conveyancing POA

Conveyancing POA are usually limited. Your conveyancer will normally require all the below bullet points:

  • Apply for a NIE number.
  • Open a Spanish bank account.
  • Agree terms and sale´s price.
  • Buy a property (signing of deeds before a Notary public).
  • Take on a mortgage.
  • Completion and filing of tax forms.
  • Arranging registration of deeds at the Land Registry.
  • Setting up utilities on your behalf (water, electricity, landline).
  • Arranging direct debits on your behalf i.e. Community of Owners.

 

Where can a POA be Arranged?

  • In Spain. You can grant a POA before a Spanish Notary public whilst you are in Spain. This is usually the fastest and cheapest option.
  • Abroad, for example in England. Notwithstanding the above, at times buyers cannot make travelling arrangements and it may be easier for them to organize the signing of a POA in their home country. Your Spanish lawyer can draft a POA and e-mail it to you. You can then have it witnessed by a UK Notary. A POA granted in the UK or in the ROI requires affixed the Apostille seal of the The Hague Convention for it to be executable in Spain. We can recommend you UK-based notaries which are familiar with the whole procedure and who can fast-track it within the law.

 

Terminating a POA

Powers of attorney can be revoked at any given moment if needed be.

Conclusion

Whilst powers of attorney are most useful in practice, it is important to note that you should fully understand the faculties you are empowering someone with and feel confident on their performance.

In our law firm, we draft POA in double column, English & Spanish, for your peace of mind so that you know exactly what powers you are signing over to one of our lawyers.

To close, I strongly advise not to give POA to non-family members who are neither registered nor qualified to practice law; specifically, broad powers on money matters.

 

“Power tends to corrupt and absolute power corrupts absolutely.” – Lord Acton.

19th century aristocratic British politician, historian and writer. He was a libertarian that considered political liberty the essential condition. Famous for this very quote.

 

Our law firm charges €175 plus VAT for a POA service. This fee is deductible on hiring our conveyance service.

 

Article originally published at Spanish Property Insight: Power of Attorney Explained.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

Legal services Larraín Nesbitt Lawyers can offer you

 

Conveyancing related articles

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.017 © Raymundo Larraín Nesbitt. All rights reserved.

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NIE Number Explained

Raymundo Larraín Nesbitt, May, 8. 2017

Lawyer Raymond Nesbitt explains what a Spanish NIE number is, who needs it and how to get one.

Get a NIE Number through us.

 

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of May 2017

 

Introduction

What is a NIE number? This will be one of the first questions you will be asking yourself when you move on over to Spain. Succinctly, a NIE number is a tax identification number for foreigners which identifies you before the Spanish Tax Office and allows you to file and pay taxes in Spain. NIE stands for Número de Identificación de Extranjero. It is the counterpart of the NIF number which only applies to Spanish nationals.

I have written up this brief Frequently Asked Questions to give a quick rundown on what it entails. You can request a NIE number service from our law firm.

 

Photo credit: Benidormseriously.com

 

Why is a NIE number needed?

Basically, any activity in Spain that requires you, as a foreigner, to pay taxes will need you to apply for a NIE number. A NIE number does not preclude your tax residency. The list supplied below is ad exemplum; it is by no means a closed list.

  • Buying property.
  • Selling property.
  • Connecting your property to utilities.
  • Inheriting assets in Spain.
  • Opening a bank account.*
  • Taking out insurance.
  • Importing/buying/selling a car (required to register foreign plated car onto Spanish plates)
  • Importing/buying/selling a boat.
  • Working in Spain.
  • Studying in Spain.
  • Claiming benefits.
  • Obtaining a mortgage or any other type of loan.
  • Can be used to enrol in a town hall census.
  • Paying import tariffs on importing goods to Spain at customs (aduanas) in airports.
  • Some elite private foreign schools require a NIE number from parents and/or new (foreign) pupils to enrol them!

 

*Whilst it used to be a mandatory requirement in the past to attain a NIE number as a foreign resident to open a bank account in Spain, this is no longer the case. However, although initially you can now open a bank account without a NIE number it will be required further down the line by the tax office.

Who needs a NIE number?

  • Any foreigner who becomes resident in Spain for tax purposes.
  • Any non-resident who plans to own assets in Spain i.e. real estate, car, boat etc.
  • Any foreigner who plans to work, study or start a business in Spain.

 

What does a NIE number look like?

A NIE number is issued by the National police on a standard A4 size of paper which also has your name, surname, date of birth and nationality (see article’s photo above for more details). Example: X-12345678-R.

How to get a NIE number

  1. Apply abroad in person, through a Spanish consulate.
  2. Apply in person in Spain before a Spanish National Police Station.
  3. Apply by representative. You can appoint a law firm, such as ours, to act on your behalf as proxy using a Power of Attorney specific to NIE numbers.

What is required to attain a NIE?

  • Passport.
  • Fill in the relevant application form in Spanish.
  • Pay the government fee.
  • Justification on why it is needed.

 

Advantages of hiring a law firm to apply for a NIE number on your behalf (apply by representative)

 

  • It’s fast. We can apply for a NIE number. We can then scan and email you your assigned tax number. For an extra fee, we can post you the original certificate.
  • It’s cheap. Hiring us will be significantly cheaper than flying over to Spain and doing all the legwork yourself!
  • It’s safe. We are registered lawyers with Professional Indemnity Insurance.
  • You save yourself setting aside holidays to come over to Spain for two or three days.
  • You save yourself booking flights to Spain plus hotel lodging.
  • You save yourself having to hire a Spanish translator to translate all the legal jargon and documents in Spanish (Police Stations only deal with you in Spanish).
  • You save yourself having to wake up early in the morning and endure endless queues at a Police Station under a scorching sun only to be attended in Spanish after several hours.

 

10 FAQs on NIE Numbers

 

  1. I´ve read that NIE numbers have a three-month validity, is this true? After 3 months do I need to apply for a new one?

Not true. The NIE number comes with an unfortunate wording that makes it seem as if it was only valid for three months. In practice, it does not expire. Once you have a number assigned by the National Police it will be yours for lifetime. You also do not need to renew it; so, it is basically a one-time thing.

Now that I have clarified this common misunderstanding, comes the tricky part. What actually does expire is the certificate itself which you are issued by the Police Station (the A4 size sheet of paper). Should you require a new certificate, for whatever reason, you may need to request them to re-issue you one (but as I write, it will have exactly the same NIE number as the one before). The only thing that will change is the expiry date which will be again for a further three months.

  1. I offer my property as a holiday rental (short-term) advertising on popular property portals such as Airbnb. Do my lodgers need to apply for a NIE number when I submit my quarterly tax model 210? Even if they are just staying overnight?

Short answer is no. Only the property owner (or joint owners) need to apply for a NIE number.

  1. In my country we have several Spanish diplomatic missions. Why would I need to hire a law firm instead of applying for a NIE number in person through any one of them?

Although on paper this may seem like a good idea, in practice it´s botched. The main problem on applying for a NIE number through a Spanish consulate is that your paperwork is sent from your home country over to Spain (usually Madrid) and then back again. This winded process can take up to several months to fruition with little to no feedback. You will endure first-hand the wonders of Spanish red tape setting you back by several months. Besides, not all consulates allow you to apply for one. So basically, it’s a no-no unless you enjoy watching grass grow.

  1. Does attaining a NIE number make me a Spanish tax resident?

No, it doesn´t. All it is really is just an admin number to identify you before the Spanish Tax Office. It does not preclude your tax status.

  1. I’m planning to buy a property in Spain jointly with my wife. Do we both need a NIE number or only myself? If I buy a property with my children (to mitigate IHT) do they also need a NIE?

Both of you need one. Any owner or joint owner of a property needs to apply for a NIE number.  This will also include your children should they also become joint owners with yourself and your wife.

I take the opportunity to introduce a shameless commercial plug and advise that our law firm offers significant discounts when you apply through us for NIE numbers in bulk orders (three or more).

  1. I was planning to buy a property in Spain but at completion the Notary refused to sign because I didn´t have a NIE number. Is this correct?

Yes. One of the roles of a Spanish Notary is to ensure all taxes are paid to the Tax Office. It stands to reason that if you don’t have a NIE number you cannot pay the associated taxes of a purchase. In other words, to buy or sell property in Spain it is mandatory by law to have a NIE number (if you are a foreigner) at completion so you can pay the appropriate taxes. A Notary will check if a buyer has a NIE number and will refuse to witness the signing if he lacks one.

  1. I have read online that one can no longer apply for a NIE number using a representative through a Power of Attorney; you need to apply for it in person. Is this advice wrong?

Rather than wrong, I would say this advice you have read on internet is out-of-date. Please excuse me digressing for a bit.

For a few months in 2012 National Police Stations turned down representatives using PoA to apply for a NIE. Lo and behold, it panned out that many non-residents simply did not have the sweet time to waste two or three days to leave their work and fly over to Spain in person just for the privilege of queueing up at a Spanish Police Station for hours on end under a baking sun. On top of it (booking flights, hotel lodging) these foreigners also needed to hire a translator to deal with Spanish police as they only communicate in ta-da: Spanish!

So, the dire combination of costs ballooning coupled with all the red tape translated into a sharp dip in property sales at a time when Spain’s ailing economy sorely needed its property market to pick up. The ensuing public outcry was such that the Government came back into its senses and backpaddled on its new policy only months after introducing it. As a result of such a short-sighted policy, the economy had virtually grinded to a halt. You really couldn’t make it up.

What can be gleaned from this amusing little story is that the whole property market in Spain pivots on this first step, a NIE number; if you mess with it the property market tumbles like a house of cards which is exactly what happened. Long story short, business is back to usual and National Police Stations now accept representatives applying for NIE numbers using PoA.

  1. What happens if I lose my NIE number certificate?

Nothing much. You can always request a duplicate. As previously mentioned, the number you have been assigned does not change.

  1. What happens if I move and change my address in Spain, do I need a new NIE number?

No. You get to keep the one you were assigned.

  1. What happens if I change my surname?

You must apply for a another NIE number that matches your new surname.

 

Conclusion

If you are interested in buying, working, studying or simply living in Spain, you will need a NIE number.

My advice is that you keep it simple and hire a competent law firm such as ours to sort it out on your behalf for a (very) competitive fee. We will save you time, money, hassle and considerable aggravation under the sun.

This article in other languages:

French

German

Italian

Polish

Portuguese

Romanian

Russian

Article originally published at Spanish Property Insight: Spanish NIE Number Explained.

 

Legal fee: €200 *

* Our fees do not include admin fees, or mailing a NIE certificate. In the rare event your application is turned down, refunds do not apply. VAT not inclusive

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We do NOT answer questions over the phone on NIE Numbers. You can contact us by e-mail at info@larrainnesbitt.com, or by completing our contact form.

 

Legal services Larraín Nesbitt Lawyers can offer you

 

 Related articles

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.017 © Raymundo Larraín Nesbitt. All rights reserved.

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Buying Property in Spain from a Developer (Off-Plan Property)

Raymundo Larraín Nesbitt, March, 8. 2017

Solicitor Raymundo Larraín Nesbitt takes us step-by-step through the legal procedure to buy new-build property in Spain from a developer.

By Raymundo Larraín Nesbitt
Director of Larraín Nesbitt Lawyers
8th of March 2017

 

 

 

Introduction

Continuing last month’s topic on Buying Property in Spain from a Private Seller (Resale Property), this month  I provide a general overview on the full legal procedure on buying off-plan property from a developer (also known as new-build). The procedure to buy off-plan differs significantly from buying resale; to the point it warrants its own article as the pitfalls vary meaningfully from one another.

The following article provides a sweeping outline on the buying procedure. If you are looking for concrete advice on a given matter, I highly advise you read my listed articles below which focus on specifics. Just scroll down the page to the bottom section which headline is “Related articles.”

I have simplified the procedure on purpose for ease of comprehension. If you are looking for more detail, I advise reading my article How to Buy Property in Spain Safely which gives an in-depth account of the full buying procedure.

It is strongly advised you read this article in tandem with my article Buying Off-Plan Property in Spain.

 

First Stage: The Reservation Contract

 

Bear in mind that you are paying a deposit on a property which under normal circumstances does not even exist yet and is unlikely to exist until a couple of years’ time. New-builds, unlike their key-ready resale counterparts, have an inherent element of risk associated to them. This risk is mitigated in the knowledge that new-builds are, in general, significantly cheaper than a resale property (on average by 30%). Moreover, as they are new, they are normally built catering to the highest quality standards and employing the most modern materials and know-how. This has a significant impact in insulation, for example, which may in turn impact your Town Hall tax bill by reducing it significantly (read pro-tips below).

After making enquiries and looking around for a property you may have taken a liking to one. Off-plan properties are normally listed by developers or real estate agencies. They will nudge you to sign what is known as a reservation contract (or holding deposit) which strikes the new-build property off the market for a pre-agreed period of time; normally spanning 30 days.

The deposit normally amounts from €3,000 to €6,000 depending on the property. The deposit contract is a succinct document that is normally only one page long. It has very few details, amongst them the developer´s name and company details, the development’s facilities, a general property description and the asking price.

The reservation deposit will be deducted from the final sales price at completion (third stage, see below).

Pro-Tips:

  • It is strongly recommended that you hire an independent conveyance lawyer from the outset (prior to signing a deposit contract). Do NOT hire lawyers recommended by the developer; much less use his own lawyers no matter how reputable (even if free of charge). They are biased and will act only in the developer’s best interests, not your own - you will pay dearly on making this mistake. On following this simple, yet essential, advice buyers stand to sidestep most blunders on buying off-plan property in Spain.
  • You should not pay any deposit unless the developer or estate agency have supplied you first with a copy of an approved Building Licence. The reason is because it could void the bank guarantees securing your stage payments; in plain English, you would lose all your money without any legal recourse. More details in my article Law 20/2015: Important new bank-guarantee legislation explained for offplan buyers.
  • Reservation deposits are normally non-refundable unless expressly stated otherwise.
  • You need to apply for a NIE number (Tax Identification Number for Foreigners). More details in my article: NIE Number Explained.
  • You should open a non-resident bank account.

 

Second Stage: Signing a Private Purchase Contract

 

Before the 30 days are up you will be expected to sign what is known as a Private Purchase Contract (or PPC for short). In Spanish, this is known as Contrato Privado de Compraventa. In English law we know it as Exchange of Contracts. The PPC will be a long legal contract which will list the buyer and seller´s personal details, a full property description, the agreed sales price, the schedule of stage payments, the buying terms and the time frame to complete before a Notary Public.

Your lawyer will have normally already supplied you with a report on title so you are perfectly aware of the legal situation of the property you want to buy before signing the private agreement. This report on title should cover at the very least the following check list:

  • Is the developer creditworthy? Construction track record?
  • Does the developer own the land where the property will be built?
  • Is there a valid Building Licence issued by a town hall?
  • Are there any challenging planning issues overshadowing the development?
  • Is the construction site compliant with Spain’s Coastal Law?

 

Normally on signing a PPC you are expected to make a down payment equivalent to 10% of the purchase price which will be deducted upon completion (stage three). This amount of money is non-refundable.

You will be expected to pay approximately 35% of the final sales price in stage payments. These are deducted at completion (stage three) from what you owe.

 

Pro-Tips:

  • All stage payments (including the initial reservation deposit mentioned in stage one) should be secured by what are known as bank guarantees. I simply cannot stress enough its importance. This document will be handed to you each time you make a stage payment and acts as a safety net on all the interim payments you make until the property is built. This safeguards your money in the event the development is not finished or should the developer file for bankruptcy. Attaining copies of bank guarantees is a top priority for your appointed conveyance lawyer.
  • Remember to store safely a copy of all the stage payments you make into a Spanish bank as they will be required upon completion. You may also need them further on should you instigate legal proceedings.
  • A developer cannot amend the agreed delivery date of a property worded in the PPC without your written authorisation.

 

Una obra maestra entre viñedos | Hotel Marqués de Riscal, Elciego

 Photo credit: Otherworldly Hotel Marqués de Riscal amid vineyards, Valladolid, Spain. By Frank Gehry.

 

Third Stage: Completion

 

One of the particularities of buying offplan property, is that completion normally takes place some two years after signing the PPC (stage two). The reason being is that the property is under construction and you only complete when it is finished.

Completion is the term used to sign the Title Deed which is witnessed by a Notary Public. Additionally, if mortgage finance is required a second deed is signed called a Mortgage Deed. Completion is the time when you pay the balance that you owe, normally 50% of the sales price.

You should read carefully through the deeds before you sign anything. This is particularly true of a Mortgage Deed. Your lawyer should ensure you do not sign abusive mortgage clauses.

If you need a mortgage loan to complete on the property, it is highly advisable you negotiate a reasonable time frame to secure it i.e. 45 to 60 days. This is particularly true if a borrower is non-resident. A borrower requires an Offer in Principle (or Agreement in Principle) from his lender known as Oferta Vinculante in Spanish.

At completion, you take legal possession of the property which is symbolized by being handed over the house keys.

At completion, you may be surprised to find a great number of people:

  1. The developer’s legal representative and his lawyer.
  2. The bank´s representatives (if a mortgage loan is required).
  3. The estate agent (this is the time when they earn their commission)
  4. A translator.
  5. And finally, the Notary himself.

Your lawyer will file and pay the buyer´s taxes and lodge under your name at the Land Registry your new Spanish property.

Congratulations, you are now the official owner of a Spanish property. Enjoy!

Pro-Tips:

  • It is strongly advised you do NOT complete before you are handed with a copy of the Licence of First Occupation (LFO, for short). This document ensures the property is above board (normally). Completing without a LFO has associated a number of key problems:

 

  1. Primarily, you will not be able to take out a mortgage on the property or re-mortgage it – if needed be – by any lender other than the developer’s bank.
  2. You will not be able to benefit from the official utility supplies; only from the developer’s supplies (water and electricity) with all the associated problems this has, namely that you may be cut off at any time as it is the developer who is paying for it and if they go into receivership you will be shut off. Besides, the site supply electricity doesn’t have the same strength and power surges are fairly common on simultaneously turning on various electrical appliances such as air conditioning. Until the LFO is attained, the developer has to pay, by law, for the utility supplies.
  3. Any future prospective purchaser, or their lawyer, will haggle with you and require a steep discount if you lack a LFO. In a resale, the purchasers in turn will undergo the same problems to secure finance by means of a mortgage loan. A lack of a LFO tacitly implies that you are actually reducing the pool of potential purchasers for your resale.
  4. If there are Planning issues, the town hall can set a charge against the property and you, as the new owner of an off-plan and not the developer, may be held liable to pay the fine for the planning illegality.
  5. Needless to say, you cannot (legally) rent a dwelling without a LFO.

 

  • It is strongly recommended you hire a chartered surveyor to carry out a snagging list of the property; this is particularly true of new-build properties. The time to detect and mend all outstanding construction flaws is before you complete at the Notary. Once you complete, you lose your leverage unless your lawyer has practiced a retention. Commissioning a comprehensive snagging report avoids countless problems and is worth every penny in my experience.
  • Failure to secure a mortgage loan in time may result in the loss of the 10% deposit. The developer will always offer a buyer to subrogate himself in his position taking on the developer´s mortgage loan. This may not be always beneficial for a buyer.
  • It goes against a buyer´s best interests to under-declare part of the sales price at completion (besides being illegal). More on why in my article Taxes on Selling Spanish Property.
  • You should immediately replace all the locks of your new property (including storage rooms) as countless people have had access to copies of your home keys during the construction phase. This avoids thefts and break ins during the first months.
  • Request an Energy Performance Certificate from the developer prior to completion. Properties with high energy efficiency ratings qualify for tax rebates of up to 20% on their local Town Hall tax (i.e. IBI tax).

 

https://upload.wikimedia.org/wikipedia/commons/thumb/0/08/Fallingwater_-_DSC05639.JPG/375px-Fallingwater_-_DSC05639.JPG

 

Photo credit: Fallingwater (Kaufmann Residence) by Frank Lloyd Wright.

 

 

Fourth Stage: Post-Completion

 

You should open a Spanish bank account if you haven’t done so already. Utility companies do not accept overseas payments so you should set at least all the following as a direct debit against your Spanish account:

  • Utility bills (invoiced quarterly in the case of water and monthly with electricity).
  • Rubbish collection tax. Paid twice or once a year depending on the town hall.
  • IBI tax. Paid annually (akin to the UK’s Council tax). I strongly urge this tax is set up as a direct debit; failure to pay it may lead the authorities to auction off your property in a procedure which is surprisingly expedient – as in months. Whoever is the owner of a property on the 1st of January of the current year is liable to pay for this tax.

 

Pro-Tips:

  • On owning property in Spain, it is strongly recommended you make a Spanish will. This avoids your heirs a number of problems down the line.
  • You should set as a direct debit utilities and local taxes.
  • On owning property, you should appoint fiscal representation to comply with your annual Non-Resident taxes.
  • If you plan to rent out your property as a private holiday rental some regions have stringent laws on the matter – seek legal advice. Some regions require you to apply for a rental licence or that you register your holiday rental home. Non-compliance may attract humongous fines.
  • IBI tax is not normally available to pay until one or two years after completion. However, you will be expected to pay all the backdated taxes since you completed.

 

Associated Buying Expenses

 

As a rule of thumb purchase costs add 10 – 15% over and above the purchase price. In some regions of Spain, particularly in Valencia, this figure may be higher. Please take thorough legal advice to budget your purchase before you commit. You can read my article Taxes on Buying Spanish Property for more details.

Besides paying taxes (explained below), a buyer is bound to pay the following fees:

  1. Taxes
  • Value Added Tax (IVA, in Spanish): 10%.
  • Stamp Duty (AJD, in Spanish): 0.5% – 1.5%

 

  1. Fees & Charges
  • Notary fees (for the formalization of the deeds): approx. 0.1 – 2 %
  • Land Registry fees (for the inscription of the deeds): approx. 0.1 – 2 %
  • Mortgage & Gestoría fees (if finance is required): 1 – 2 %
  • Lawyer’s fees: 1 – 2 %
  • Estate Agent’s fees: 5 % (these are paid for by the vendor unless agreed otherwise)

 

Pro-Tip:

  • Storage rooms (trastero) and car parks (plaza de garaje) sold individually and legally separate from the main dwelling have a VAT of 21%.

 

Conclusion

Hiring a seasoned lawyer, in my experience, pays for itself on all the money you stand to save on avoiding the most common pitfalls on buying a property in Spain.

Make sure you are assisted on your house-hunting by reputable experts (such as a long-established real estate agency, a reliable mortgage broker or a seasoned lawyer) to benefit most from the wide range of available bargains – you will be spoilt for choice.

It is important you avoid being pressurized into completing; take your time to fully assess the information you are being given and do not hesitate to ask any questions.

And to close, I stress draconianly not to complete without a Licence of First Occupation.

Because impartial legal advice is priceless.

 

“Your best work is your expression of yourself.” – Frank Gehry.

Frank Owen Gehry is a Canadian-American architect who won the Pritzker Prize in 1989. He is known for his buildings such as 8 Spruce Street, Dancing House, Port Olímpic, Jay Pritzker Pavilion, the Hotel Marqués de Riscal and the Guggenheim Museum in Bilbao, Spain. He built buildings across the United States and across South America.

 

 

Also published at Spanish Property Insight: Buying Property in Spain from a Developer (Off-Plan Property).

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. Please contact us for a free initial consultation. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on 951 894 675 or by completing our contact form.

 

Legal services Larraín Nesbitt Lawyers can offer you

 

 Related articles

 

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.017 © Raymundo Larraín Nesbitt. All rights reserved.

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Buying Property in Spain from a Private Seller (Resale Property)

Raymundo Larraín Nesbitt, February, 21. 2017

Solicitor Raymundo Larraín Nesbitt takes us step-by-step through the legal procedure to buy property in Spain from a private vendor, also known as For Sale By Owner (FSBO).

By Raymundo Larraín Nesbitt
Director of Larraín Nesbitt Lawyers
21st of February 2017

 

 

 

 

Photo credit: Spanish Property Insight

 

Introduction

The purpose of this article is to provide a general overview on the full legal procedure when you buy resale property from a private individual. I leave for another article the procedure to buy property from developers (known as off-plan or new-build property).

The following article provides a sweeping outline on the procedure. If you are looking for concrete advice on a given matter, I highly advise you read my listed articles below which focus on specifics. Just scroll down the page to the bottom section which headline is “Related articles.”

I have simplified the procedure on purpose for ease of comprehension. If you are looking for more detail, I advise reading my article How to Buy Property in Spain Safely which gives an in-depth account of the full buying procedure.

If you are buying rural property, make sure you hire a lawyer before you sign any document! Be advised rural property is a minefield in Spain.

It is strongly advised you read this article in tandem with my article Buying Resale Property in Spain.

 

First Stage: The Reservation Contract

 

After making enquiries and looking around for a resale property you may have taken a liking to one. Properties are normally listed by real estate agencies. The real estate agency that has the property listed in its books will prod you to sign what is known as a reservation contract (or holding deposit) which strikes the property off the market for a pre-agreed period of time; normally spanning 30 days.

The deposit normally amounts from €3,000 to €6,000 depending on the property. The deposit contract is a succinct document that is normally only one page long. It has very few details, amongst them the property and seller´s details and the asking price.

Pro-Tips:

  • It is strongly advised you hire an independent conveyance lawyer from the outset (prior to signing a deposit contract). On following this simple yet essential advice buyers stand to sidestep most blunders on buying property in Spain.
  • Reservation deposits are normally non-refundable unless expressly stated otherwise.
  • You need to apply for a NIE number (Tax Identification Number for Foreigners). More details in my article: NIE Number Explained.
  • You should open a non-resident bank account.
  • An agency´s reservation deposit should at no time list who pays what taxes and set out other conditions. This is agreed by the parties in stage two (Private Purchase Contract).
  • Request an Energy Performance Certificate from the estate agency. Properties with high energy efficiency ratings qualify for tax rebates of up to 20% on their local tax (IBI tax).
  • It is strongly recommended you hire a chartered surveyor to carry out a snagging list of the property; this is particularly true of older properties. If you are buying rural property commissioning a surveyor's report beforehand is simply essential. This will avoid countless problems.
  • Your lawyer will run a Due Diligence on the title to verify all is in order before moving onto the second stage.

 

Second Stage: Signing a Private Purchase Contract

 

Before the 30 days are up you will be expected to sign what is known as a Private Purchase Contract (or PPC for short). In Spanish, this is known as Contrato Privado de Compraventa. In the United Kingdom this second stage is known as exchanges. The PPC will be a long legal contract which will list the buyer and seller´s personal details, a full property description, the agreed sales price, the buying terms and the time frame to complete before a Notary Public.

Your lawyer will have normally already supplied you with a report on title so you are perfectly aware of the legal situation of the property you want to buy before signing the private agreement.

Normally on signing a PPC you are expected to make a down payment equivalent to 10% of the purchase price which will be deducted upon completion (stage three). This amount of money is non-refundable. If you need a mortgage loan to complete on the property, it is highly advisable you negotiate a reasonable time frame to secure it i.e. 45 to 60 days. This is particularly true if the borrower is non-resident. A borrower requires an Offer in Principle (or Agreement in Principle) from his lender known as Oferta Vinculante in Spanish.

If movables are being sold along the property it is highly advisable an inventory is added to the PPC. This inventory should be drawn up in great detail to avoid misunderstandings. This inventory will likewise be added to the Title Deed at the Notary Public on completion. It is regarded as a contractual element which binds both parties. If the seller does not include something from within, it will be regarded as a breach of contract. The inventory is normally drafted by the estate agency.

 

Pro-Tips:

  • Failure to secure a mortgage loan in time may result in the loss of the 10% deposit.
  • It movables are being sold along the property, it is crucial the inventory is detailed and accurate. You may even consider adding photographs of the items listed.

 

Third Stage: Completion

 

Completion is the term used to sign the Title Deed which is witnessed by a Notary Public. Additionally, if mortgage finance is required a second deed is signed called a Mortgage Deed.

You should read carefully through the deeds before you sign anything. This is particularly true of a Mortgage Deed. Your lawyer should ensure you do not sign abusive mortgage clauses.

At completion, you take legal possession of the property which is symbolized by being handed over the house keys.

At completion, you may be surprised to find a great number of people:

  1. The seller and/or his lawyer.
  2. The bank representatives (if a mortgage loan is required).
  3. The estate agent (this is the time when he earns his commission)
  4. A translator.
  5. And finally, the Notary himself.

Your lawyer will file and pay the buyer´s taxes and lodge under your name at the Land Registry your new Spanish property.

Congratulations, you are now the official owner of a Spanish property. Enjoy!

Pro-Tips:

  • It goes against a buyer´s best interests to under-declare part of the sales price at completion (besides being illegal). More on why in my article Taxes on Selling Spanish Property.
  • Never agree to a seller staying in the property post-completion even if it’s just for a “short time”. This can create massive legal problems for a buyer which will require a full eviction procedure.

 

 Inline image

 

Fourth Stage: Post-Completion

 

You should open a Spanish bank account if you haven’t done so already. Utility companies do not accept overseas payments so you should set at least all the following as a direct debit against your Spanish account:

  • Utility bills (invoiced quarterly in the case of water and monthly with electricity).
  • Rubbish collection tax. Paid twice or once a year depending on the town hall.
  • IBI tax. Paid annually (akin to the UK’s Council tax). I strongly urge this tax is set up as a direct debit; failure to pay it may lead the authorities to auction off your property in a procedure which is surprisingly expedient – as in months. Whoever is the owner of a property on the 1st of January of the current year is liable to pay for this tax.

 

Pro-Tips:

 

Associated Buying Expenses

 

As a rule of thumb purchase costs add 10 – 15% over and above the purchase price. In some regions of Spain, particularly in Valencia, this figure may be higher. Please take thorough legal advice to budget your purchase before you commit. You can read my article Taxes on Buying Spanish Property for more details.

Besides paying taxes (explained below), a buyer is bound to pay the following fees:

  1. Taxes
  • Property Transfer Tax (or ITP in Spanish) which varies, depending on the Autonomous Community where the property is located, between 7 to 10%.

 

  1. Fees & Charges
  • Notary fees (for the formalization of the deeds): approx. 0.1 – 2 %
  • Land Registry fees (for the inscription of the deeds): approx. 0.1 – 2 %
  • Mortgage & Gestoría fees (if finance is required): 1 – 2 %
  • Lawyer’s fees: 1 – 2 %
  • Estate Agent’s fees: 5 % (these are paid for by the vendor unless agreed otherwise)

 

Conclusion

Hiring a seasoned lawyer, in my experience, pays for itself on all the money you stand to save on avoiding the most common pitfalls on buying a property in Spain.

Make sure you are assisted on your house-hunting by reputable experts (such as a long-established real estate agency, a reliable mortgage broker or a seasoned lawyer) to benefit most from the wide range of available bargains – you will be spoilt for choice.

It is important you avoid being pressurized into completing; take your time to fully assess the information you are being given and do not hesitate to ask any questions.

Because impartial legal advice is priceless.

 

“Buy land, they’re not making it anymore.”  – Mark Twain.

 

American writer, entrepreneur, publisher and lecturer. Among his novels are The Adventures of Tom Sawyer and its sequel, Adventures of Huckleberry Finn.

 

Also published at Spanish Property Insight: Buying Property in Spain from a Private Seller (Resale Property).

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

Legal services Larraín Nesbitt Lawyers can offer you

 

Property-related articles

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. Voluntas omnia vincit.

2.017 © Raymundo Larraín Nesbitt. All rights reserved.

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Renting in Spain – Landlord's Taxation Guide

Raymundo Larraín Nesbitt, January, 8. 2017

The following article summarises the tax obligations of non-resident landlords in Spain, including the rental reliefs, tax allowances and deductions they can benefit from.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of January 2017

 

 

 

Introduction 

In my experience non-resident landlords seem, at best, blissfully unaware of their taxation duties on renting out their properties in Spain; at worst, they are totally baffled by them. So I thought it would be a good idea to start off the year by adding to the mayhem writing up this little article!

For an abridged version of this article, please read my straight-to-the-point blog post without the esoterics.

I frequently get asked to cast some light on the matter, so this guide attempts to lay out all the different scenarios non-resident landlords may be faced with and what exactly are their tax duties as a result.

I take the liberty of introducing the article with the lenient tax allowances EU and EEA residents can now benefit from following recent jurisprudence from the European Court of Justice. British nationals, for the time being, may still benefit from these allowances on filing their Spanish tax returns until Prime Minister Theresa May triggers article 50 sometime in spring 2017.

This article is split into two sections:

  1. Allowances (state and regional) as well as deductions non-resident landlords can benefit from (as physical persons) to mitigate their rental tax bill in Spain.
  2. Tax returns to be filed (in Spain) depending on which case a landlord is classified in (short or long-term rental).

 

 I. Landlord Rental Reliefs

 

Following up on my article from February 2015, regarding the ECJ’s landmark ruling of last 3rd of September 2014, which put an end to discrimination between residents and non-residents on taxation matters, these changes also affect rental laws.

Law 26/2014 of the 27th of November amends both the Personal Income Tax Act (I.R.P.F.) and the Non-Resident Income Tax Act (I.R.N.R.). These changes came into force on the 1st of January 2015. I had already referred to these changes in December’s and February’s articles: Taxes on Selling Spanish Property and Changes To Spain’s Inheritance And Gift Tax Law.

Law 26/2014 adapts and transposes the decision taken by the ECJ amending internal Spanish national laws. It brings to an end (fiscal) discrimination between residents and non-residents in a wide array of matters; for this article’s sake, specifically on rental matters. EU-residents are now treated on par with Spanish residents on taxation matters relating to allowances and deductions. This translates into paying fewer taxes (as non-residents now qualify for deductions and tax allowances which were previously barred to them as these were earmarked for Spanish residents alone).

For the purpose of this article, when I make reference to ‘non-tax residents’ I will always be referring to citizens which are either tax resident in another Member State of the European Union or else in the European Economic Area (E.E.A., which is compromised by Iceland, Liechtenstein and Norway). Just to clarify, the below-listed changes do not benefit tax residents outside of the EU or EEA.

I.e. a US national cannot benefit from the tax allowances listed below.

Additionally, it should be noted that non-EU and EEA nationals have a different tax scale levied on them on renting their properties.

As a brief recap:

I) Landlords resident in E.U. or E.E.A.

  • Tax relief: Yes, physical persons may deduct, for example, home insurance, mortgage loan interest payments, property maintenance expenses etc. Legal persons may also deduct rental related expenses.
  • Dates: collected annually or quarterly.
  • Tax form: 210.
  • Tax rate: 19% on rental income for 2016.

 

 II) Landlords resident outside the E.U. or E.E.A.

  • Tax relief: no.
  • Dates: collected annually or quarterly.
  • Tax form: 210.
  • Tax rate: 24% on rental income for 2016.

 

Rental Allowances – Situation Prior to the ECJs’ Ruling

Non-resident rental allowances were virtually non-existent prior to this ruling for private individuals. There were few instances in which you could offset rental taxes as they required you employed someone full time and had a permanent establishment in Spain. Obviously of little practicality which was not an option for the vast majority of non-resident landlords.

Post-ECJs’ Ruling – Changes to Spain’s Rental Laws

The ECJ’s key ruling of 3rd of September 2014 marks the inflection point which puts an end to (fiscal) discrimination between residents and non-residents. It forces Spain to amend its internal laws and accommodate the European principles on which the EU is grounded on. The significance of the ECJ’s ruling is that it has opened up the opportunity for non-residents to apply as from the 1st of January 2015 to the below-listed state tax allowances and deductions which were previously reserved only to Spanish residents. In addition, non-residents may also benefit from those set by the Autonomous Communities where the property is located which have a penchant of being more generous than state law.

When taxpayers are resident in another European Union Member State, or in the E.E.A., the expenses described in the Law on Personal Income Tax (IRPF) can be deducted when calculating the taxable base, provided that proof is supplied that these expenses are directly related to income earned in Spain and have a direct economic connection that is inseparable from the activity carried out in Spain. When expenses are deducted, a certificate of tax residency in the corresponding State issued by the tax authorities of that State which must be filed along with your tax return.

So, for example, a British national must request from the HMRC a certificate of tax residency in the UK and submit this to the Spanish Tax Office. This allows to successfully offset the maintenance and running expenses of their Spanish property against their rental income yielding a higher net income. Needless to say, you need a lawyer to organize this on your behalf.

Landlord’s State Reliefs and Deductions for Private Home Rentals

Non-resident landlords can either rent out their properties on a short or long-term basis:

  • Short-term lets are understood to be subject to private holiday rental laws which are covered in detail by my articles Holiday Rental Laws in Spain and Holiday Home Taxation in Spain. Moreover, this can be further compounded by whether a rented property is classified as either urban or rural which gives way to a different set of regulations and legal requirements.
  • Long term lets are subject to Spain´s Urban Rental Law better known by its acronym LAU. These long-term lets are covered by my article Urban Rental Laws in Spain.

 

The main difference between both is that the former is ruled by each of Spain´s 17 Autonomous Regions whereas long-term lets are ruled by a national legal framework which acts nationwide. The significance of this from a practical point of view, is that landlords who rent on a short-term basis using, for example, Airbnb or other similar rental portals should check the minutiae of the regional laws where their properties are located. Some of these laws are fairly restrictive and in fact may even require a landlord to attain a rental licence of sorts or else to register themselves prior to renting out their accommodations. Non-compliance may attract humongous fines in the thousands of pounds.

The following state deductions and allowances can be offset or deducted mitigating a landlord´s tax bill without prejudice of additional compatible allowances set out by the Autonomous Community contingent on where the property is located. Please take legal advice on the latter for your case as for economy of space I will not be listing them below.

The above translates into significantly higher returns for landlords on taking smart advantage of these lenient allowances. Meaning non-resident landlords stand to profit from higher net yields on letting in Spain as from 2015 onwards.

Article 24.6 of the Non-Resident Income Tax Act (I.R.N.R.) makes a direct renvoi on these to art. 23 of the Personal Income Tax Act (I.R.P.F.).

Please take note I will only list in this article allowances which properties are owned by physical persons, not by legal persons. More on ownership of Spanish properties through corporate structures in my article Buying and Owning Spanish Property through Companies: Pros and Cons.

 

Landlord Rental Tax Relief: Allowances & Deductions (as Physical Person)

 

  1. Rental Tax Relief / Deductible Expenses (Art. 23 I.R.P.F.)

Proof must be supplied that the following expenses are directly related to income earned in Spain and have a direct economic connection that is inseparable from the activity carried out in Spain.

 

• Interests arising from a loan to buy the property (i.e. mortgage).

• Local taxes and administrative charges and surcharges that impact on the rental income or else on the property itself (i.e. IBI tax, SUMA tax, rubbish collection tax).

• Expenses arising from formalising rental contracts such as lets or sublets (i.e. Notary and/or Land Registry fees); legal defence (i.e. hiring a lawyer for tenant eviction purposes).

• Maintenance costs may be offset; refurbishment expenses are excluded.

Examples of maintenance costs (deductible): repainting over flaky paint, plumbing, debugging, tennis court green mold cleaning, swimming pool pump replacement, annual lift maintenance, leaking faucet.

Examples of refurbishment expenses (non-deductible): glass curtains, double-glazed windows, parquet, marble floor, extension to property (outbuilding), tennis court, swimming pool, private lift.

Notwithstanding the above, refurbishment expenses may be claimed on selling the property by offsetting them against your Capital Gains Tax liability. Please read my article: Taxes on Selling Spanish Property.

• Home insurance premiums (theft, fire, civil liability etc.). Please read my articles Home Insurance in Spain, Community of Owners’ Insurance Policies and How to Cancel your Home Insurance Policy in Spain. However claims arising from events that diminish the value of a dwelling are non-deductible i.e. fire.

• Utility invoices (electricity, water, gas and landline).

• Concierge, gardening & security services (i.e. gated communities).

• Rental publicity expenses.

• Home depreciation and amortization. The calculation is 3% on the highest value of the following two: home buying costs or cadastral value; the value of the land is excluded.

2. Allowances

  • The 100% tax allowance on letting to under thirty-year-olds is supressed as from the 1st of January 2015. The allowance is now 60% on the net income regardless of a tenant’s age. EDIT: This tax relief only applies to resident landlords. If you are not resident in Spain, you cannot benefit from it.
  • Other.

 

II. Tax Returns to be Filed

 

Depending on which classification a landlord falls in, different tax models need to be filed. This section is already covered in detail by my article Non-Resident Taxation in Spain. Notwithstanding, I will do a brief summary for completion´s sake.

  1. Not renting out property.

Regardless you must file and pay an annual tax return called Non-resident Imputed Income Tax. This is tax model 210. It must be filed and paid before the 31st of December of the following year. The details are already covered by my above-mentioned article. Please see Fiscal Representation (Non-Resident Income Tax).

  1. Renting out property in Spain

 

  1. Short-term (Private Holiday Lets or holiday homes)

Besides complying with the above annual requirement, you must file a quarterly tax return for model 210. This has associated higher professional fees from lawyers or economists as it is admin intensive. A tax model must be filed for each tenant. Additionally, a tax model must be filed for each joint owner of the property (think joint property ownership as in couples).

Landlords should note that this option is borderline to running an accommodation business that is advertised in specialized rental property portals over the net. Please see Holiday Rental Accounting Service (HRAS).

  1. Long-term Rentals

You also need to file quarterly tax models. Please see Holiday Rental Accounting Service (HRAS).

  1. Professional Rental Business

Professional rental businesses require VAT is filed on a quarterly and annual basis (tax models 303 and 390). The business is equated to running a hotel accommodation. Please see Holiday Rental Accounting Service (HRAS).

Conclusion

As can be clearly surmised from the above, the taxation on private rentals may be somewhat labyrinthian given the fact that 17 different Autonomous Regions in Spain hold competence over it and rule accordingly. This requires the input of seasoned professionals to wade through the pitfalls and come out successfully.

Which is where we lawyers step in; hand-holding landlords and guiding them through the taxation ordeal to come up on top, working the system.

 

“The minute you read something that you can't understand, you can almost be sure that it was drawn up by a lawyer.” – Will Rogers.

William Penn Adair “Will” Rogers was a Cherokee-American cowboy, comedian, humourist, social commentator, vaudeville performer and actor. He was also the father of a well-known U.S. politician; nobody´s perfect.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

Legal services Larraín Nesbitt Lawyers can offer you

 

Related articles

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.017 © Raymundo Larraín Nesbitt. All rights reserved.

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Selling Property in Spain – Ten Reasons to Hire a Lawyer

Raymundo Larraín Nesbitt, December, 8. 2016

Although it is not mandatory to sell property in Spain assisted by a lawyer, it is highly advisable that you do; particularly if you are a non-resident. Lawyer Raymundo Larraín Nesbitt takes us through the advantages of having legal representation when you sell a property in Spain.

Marbella-based Larrain Nesbitt Lawyers has over 16 year’s taxation & conveyancing experience at your service. Our team of native English-speaking lawyers and economists have a long track record successfully assisting expats all over Spain. You can review here our client’s testimonials.

Article copyrighted © 2016. Plagiarism will be criminally prosecute

By Raymundo Larraín Nesbitt
Director of Larraín Nesbitt Lawyers
8th of December 2016

Introduction

While it is possible to buy or sell a property in some overseas jurisdictions, including Spain, without having to appoint a solicitor, it would be very unwise to do so. If anything, it is even more important to obtain good legal advice when selling overseas as it is highly likely that you will be unfamiliar with many of the key processes.

Broadly speaking, the two key reasons which justify hiring legal representation on selling, besides avoiding payment scams and commission abuses, are tax mitigation and a refund of the 3% of the sales price withheld by a buyer's lawyer (if applicable). These two points are explained further below.

It is often that I hear that those with vested interests in there being no lawyers involved – I wonder why – are arguably the most outspoken advocates that retaining a lawyer on selling is a superfluous expense and always put as an example that Spaniards themselves don’t hire them on selling. “In fact,” they add “your estate agent could handle everything in a jiffy at no extra cost.”

I cannot even begin to explain why this flawed advice is wrong on so many levels. So why take the risk by not obtaining proper legal advice? You can read a blog post on this: 7 reasons on why you need legal representation on selling in Spain.

Only a qualified and registered solicitor (abogado) can give you legal advice in Spain. Beware of intruders posing as lawyers who meddle in conveyancing. The golden rule is to always ask a lawyer in Spain for his registration number (número de colegiado).

Selling Property – Avoid Horror Stories

  • Seller sells a property to a cash buyer and is handed over counterfeited banknotes at the Notary Public. No legal recourse is possible.
  • Seller is duped by fellow barroom ‘illuminati’ into thinking ‘under declaring’ is the norm in Spain and accepts a huge wad of cash at the Notary on completion. Immediately after signing over the property vendor gets mugged and he’s left with no house and with no cash.
  • Seller decides best not to appoint a lawyer, agrees to sell, and accepts a holding deposit from buyer. On the day of completion at the Notary she realizes just how much tax she needs to pay and decides to bail out as the numbers do not stack up. Unbeknownst to her, the seller is now liable to pay double the holding deposit. If she still refuses to pay, she can be sued and will most likely lose the court case. A charge for over 20,000 euros will be placed against her property and this may even lead to her property being auctioned off.
  • Seller appoints ‘reputable’ estate agency. Unbeknownst to him an unscrupulous agent, on realising there are no lawyers involved, words into the agency contract a sales ‘commission’ of up to 50% (plus VAT) on signing a private purchase contract (exchange of contracts). The buyer pulls out because he is unable to secure finance from a lender to carry on with the purchase and demands a full refund of his deposit. Meanwhile, despite the sale falling through, the agent demands his 50% ‘commission’ as the private purchase contract was indeed signed threatening the vendor with litigation on non-compliance.
  • Seller, after receiving an initial reservation deposit, is cajoled into skipping signing a private purchase contract and jump straight to completion before a Notary Public. This entails a vendor waiving numerous rights and legal safeguards which would have otherwise assured a problem-free transaction.
  • Seller signs away a Power of Attorney to sell his Spanish villa in favour of his expat ‘best pal’ who berates the use of Spanish lawyers (“They sleep siestas, you know?”) and who is a self-proclaimed conveyancing expert (because he bought two rural properties back when General Franco was still alive). His best friend is never seen again – nor the money.
  • Seller grants a Power of Attorney to a ‘golf buddy’ to sign completion on his behalf as his proxy. Years later, the vendor reads some internet article where it is explained that non-resident sellers are lawfully entitled to a full refund of the 5% retention of the sales price withheld by a buyer´s lawyer. Upon further inquiry before the Tax Office it transpires ‘someone’ pocketed the 5% refund.
  • Seller arranges on his own the mandatory Energy Performance Certificate on selling, and is overcharged by several hundred euros.
  • Seller agrees with cutthroat estate agent a trivial sales price because the sales market “is tough”. Conniving agent agrees with buyer a significantly higher price. Unbeknown to both vendor and buyer, the artful dodger pockets the price difference (besides his 5% agent’s commission and the 3% sales refund of the vendor). Not bad for a day’s work, eh?

 

Selling – Ten Reasons to Hire a Lawyer in Spain

 

1. Legal independence. Larraín Nesbitt Lawyers is totally independent.

2. Registered professionals. Larraín Nesbitt Lawyers only employ qualified and registered Abogados. Registered abogados are subject to disciplinary action by the Bar Association so must conduct themselves honourably to continue practising else risk being disbarred. We are members of the British Chamber of Commerce, Spain.

3. Professional Indemnity Insurance. Registered lawyers have Professional Indemnity Insurance in place in the event of malpractice or negligence. Currently this cover stands at €1,000,000 with Larraín Nesbitt Lawyers.

4. Lawyer's fees are 100% tax-deductible! The fees you pay us to sell your property are fully deductible from the sales tax (CGT), meaning you pay less tax on hiring us.

5. No language barrier, no hidden extras. All our staff speak and write English fluently, besides other languages. Nothing will be lost in translation! We will provide you with a written quote so you are sure that there are no unpleasant surprises. We will provide you with a clear breakdown of costs in English, or your chosen language, beforehand.

6. Accountability. We will give you an invoice, statement of all expenses and written advice. Larraín Nesbitt Lawyers will put everything in writing.

7. Transparency. You will receive a written report in English, clearly setting out the terms of the sales contract.

8. Tax mitigation. Our lawyers will endeavour to offset both the associated purchase costs and refurbishment expenses on your property to reduce your tax burden on selling as much as is legally admissible (contingent on the vendor supplying us with the original invoices). More details in our article Taxes on Selling Spanish Property. Additionally, a lawyer will safeguard a seller’s right to negotiate with a buyer the pro rata payment of IBI tax (equivalent to the UKs Council tax). A seller not legally represented will likely be expected to pay this tax in full.

9. Non-residents 3% sales refund (Tax Model 211). As a post-service, our lawyers will apply for a full refund from the Spanish Tax Office (if applicable) which will be credited into your account.

10. Conveyancing can be arranged in your absence. If granting a Power of Attorney, our law firm will ensure you understand what powers you are giving and for how long those powers last. Normally the powers you give your lawyer are on-going unless you expressly revoke them. You should avoid signing off Powers of Attorney to people who dabble in conveyancing and are unqualified to provide legal advice.

 

Conclusion

Hiring a seasoned lawyer, in my experience, pays for itself on all the money you stand to save on avoiding the most common pitfalls on selling a property in Spain.

Because impartial legal advice is priceless.

We offer the most competitive fees in the market.

Conveyancing – Selling from €795

We are specialized in conveyancing.

 

“Politicians were mostly people who'd had too little morals and ethics to stay lawyers.” – George R.R. Martin.

George Raymond Richard Martin is an American novelist and short-story writer in the fantasy, horror, and science fiction genres. He is best known for his international bestselling series of epic fantasy novels, A Song of Ice and Fire, which was later adapted into the HBO dramatic series Game of Thrones.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in taxation, inheritance, conveyancing, and litigation. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form to book an appointment.

 

Tax & legal services available from Larraín Nesbitt Lawyers

 

 Conveyancing-related articles

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.016 © Raymundo Larraín Nesbitt. All rights reserved.

 

 

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