Commercial real estate in Spain: overview
A Q&A guide to corporate real estate law in Spain.
The Q&A gives a high level overview of the corporate real estate market ; real estate investment structures, including REITs; title; tenure; sale of real estate; seller's liability; due diligence; warranties; real estate tax and mitigation, including VAT and stamp duty/transfer tax; climate change targets; restrictions on foreign ownership; real estate finance; commercial leases; and planning law.
To compare answers across multiple jurisdictions, visit the Corporate Real Estate Country Q&A tool.
This Q&A is part of the multi-jurisdictional guide to corporate real estate law. For a full list of jurisdictional Q&As visit www.practicallaw.com/realestate-mjg.
The corporate real estate market
The improvement in the Spanish economy, which has shown a more positive trend over the last 12 months, has been reflected in the Spanish real estate market. Prices in the real estate and foreign investment markets have stopped falling, which has contributed to the change in sentiment. This new trend has been particularly evident in the market for foreign investment in second homes on the Spanish coast and in office space in Madrid. New financing to acquire shares and assets of Spanish banks and financial institutions has helped support prices. Spain has ceased to be a risky alternative for real estate investment. It is now a market of genuine opportunities in real estate and business in which investors are starting to compete.
Real estate investment
Different structures can be used depending on the circumstances and terms of each real estate investment. Generally, investment in real estate is made directly through a permanent establishment (PE), or a Spanish company. Special vehicles may also be used to invest in real estate, for example:
The special regime for Sociedades Anónimas Cotizadas de Inversión Inmobiliaria (SOCIMIS), the Spanish equivalent of a REIT, provides corporate income tax benefits and beneficial tax treatment of dividend distributions.
A special regime for entities providing residential lettings.
The special regime for Fondos Activos Bancarios (FAB). These funds are associated with the Spanish SAREB. The SAREB is the government-owned company that holds the shares of banks that were nationalised following the banking crisis. Foreign investors are not taxed on the transfer of real estate within these funds.
Access to bank finance for the acquisition of real estate has been restricted in Spain since 2007. This has been due to the complex situation in the financial sector. Only those investors with their own finance have been able to take advantage of opportunities in the real estate market. Individual investors have largely, therefore, been absent from the market.
Changes in legislation relating to the renewable energy sector mean that project finance is no longer used as a method of financing that type of project. Repayments previously made by the Spanish government are no longer secure. Funding has instead come mostly from foreign funds and individuals.
Restrictions on foreign ownership or occupation
There are generally no restrictions on foreign ownership of real estate (whether by a natural or legal person). However:
The buyer must fill out a Declaration to the Foreign Investment Register (Form DP2) form before buying the property if the funds for the purchase comes from a country or territory considered to be a tax haven. The declaration lasts six months (Royal Decree 664/99, 23 April).
The military must authorise purchases of real estate or rights over real estate in strategically sensitive areas (Law 8/75 of 12 March of Territories and Installations of Interest regarding national security). Such acquisitions must also be entered in the land register. Failure to comply with these rules may lead to the transaction being annulled.
The buyer must provide bank account details for the source of their funds.
The buyer will need an identity card if they are party to a transaction with economic or financial implications.
Foreign individuals require an identification card for foreigners (NIE for individuals).
Other foreign legal persons require an identification card known as a CIF.
Apart from money laundering regulations, no special restrictions or limitations apply to foreign mortgage guarantees and loans.
Title to real estate
A registered title includes the plot of land and the buildings attached to the land. Each plot constitutes a registered property. Each registered property is a legal object and has its own separate entry (folio real) in the registry in which all data affecting it is registered. There are rules that determine whether a parcel of land, a building, farm, spring or other type of property has a separate folio real in the registry system.
The Land Register provides evidence of title. The registration system is rigid, formalistic and functions efficiently. It provides legal certainty to all parties involved in a transaction. Public or private acts that affect the property are included in the land register. The Property Registry is responsible for managing the Land Register
A right or title recorded in the registry prevails over any other right or title. Certain administrative concessions (licences for individuals to use or develop publicly-owned property for a particular purpose) may also be registered. Anyone who can prove a legitimate interest in the information contained in the register may access the register. A fee is payable by the applicant.
It is not possible to make changes to the ownership of the real estate by electronic means. The transfer of real estate or the grant of rights over property should be executed by public deed in front of a notary before being registered with the Land Registry.
The notary checks that the rights against the land will be constituted, amended or extinguished in the public deed in accordance with legal requirements. The tax authorities then review the public deed to check that all relevant takes have been paid.
The public deed recording the transaction is then sent to the Land Register and is reflected in the index card for the relevant property.
A registered property can subsequently be divided into a number of separately registered properties. The division needs to be registered by public deed.
The Land Registry:
Registers or annotates contracts and legal or administrative resolutions that affect a property and other real estate rights.
Registers legal decisions that may affect the capacity of an owner.
Notes changes of use, enjoyment and other rights that apply to a property.
The register contains the following information about each title:
Details of the owner.
The surface area of the property.
A description of the estate and its adjoining properties.
The soil type.
Access to information contained in the register must be accredited by the person requesting the information. The person applying for registered information must show an ownership (legal, financial or personal) interest in obtaining this information.
The main categories of ownership are:
Full property ownership, similar to freehold ownership.
Partial rights of ownership, for example, the usufruct. In the case of a usufruct, the owner of the title continues to own the property, but the benefit and use of the property (the usufruct) is assigned to a third party.
Spanish law distinguishes between categories of ownership and rights of guarantee that concern property, such as pledges and mortgages.
There are an unlimited number of different rights that can be created over real estate. These include rights of:
Not all rights over real estate are entered on the register. For example, possessory rights or easements that affect property as a result of mandatory law, for example, water rights are not entered.
Sale of real estate
Deposit agreements are commonly used and are preliminary agreements. In a deposit agreement, the buyer indicates intent to formalise the sale agreement within a certain time by depositing a sum of money with the seller. The deposit is deducted from the final price when the transaction is finally formalised. Deposit agreements are legally binding. Certain consequences follow if the transaction is not completed by the deadline that depend on who breached the agreement:
The buyer loses the deposit if the buyer is in breach.
If the seller breaches the agreement, the seller must return twice the amount deposited by the buyer.
Parties may also agree private sales contracts that only become public and registered at a later stage. Private contracts are legally binding for the parties, but cannot bind third parties, as they cannot be registered with the Land Registry.
The main provisions of a real estate contract:
Identify the parties to the contract.
Provide a complete description of the property, including the title by which the assets are to be sold was acquired
State the price.
Record any agreements relating to money paid or the parties' obligations under the contract.
It is not compulsory for a buyer to conduct due diligence enquiries. Real estate due diligence involves a physical survey of the property, as well as carrying out various legal checks. Legal due diligence usually includes verifying:
The rights that exist over the property.
Any limitations, obligations and urban rights that may be transferred with the property.
Compliance with any regulations related to the property's specific use. This might include checking compliance with environmental regulations.
The documents registered with the Land Register disclose the main issues of interest for a buyer, including:
Whether a property is mortgaged or seized.
The property tax paid in the last four years (the state cannot make a fresh tax demand for a period before then).
Urban planning reports showing any development costs paid by the property and the type of soil at the property.
It is possible for the parties to agree that the seller will make representations in relation to the uses permitted in the property sold, or in relation to related licences. Sometimes, the parties may agree to make the sale conditional on this. However, these steps are not necessary covenants and depend on the aims of the parties.
Property developers are liable for defects caused during the construction of the building for a two year period, and for a further ten years for structural defects.
The Spanish Civil Code contains a series of rights that protect the buyer against the seller. In particular, buyers are able to claim against the seller for hidden defects.
Sellers are not responsible to buyers if, subsequent to the transaction, the state expropriates the property. There is information available that allows buyers to know if the purchased property will be expropriated. However, buyers cannot know whether there will be a change of planning use involving expropriation of the property in future.
From 1 June 2013, a seller must supply their buyer with an energy performance certificate. The energy performance certificate is an official document drafted by a competent technician. The energy performance certificate grades a building by its energy consumption in normal circumstances and includes an assessment of energy needs for hot water, heating, lighting, refrigeration and ventilation. Buildings are graded from A-G, A being the most efficient.
A buyer of an existing building should perform due diligence checks which include verifying compliance with environmental regulations have been met. A buyer should also check whether the building is appropriate to carry out whatever activity is intended to take place there.
A property can be subject to certain obligations or liabilities (ob rem). In practice this means that a property itself can attract liability for payment if the debtor defaults. For example, development costs are payable by the current owner of a property, but if the owner fails to pay, the creditor may take action against the building itself, regardless of who owns the building at the time. Sellers and buyers can agree that the seller retains responsibility for the debt. However, their agreement will not bind a third party who can claim against the premises. In these circumstances, the buyer would then claim against the seller under their agreement.
In other cases, generally a property can only carry liabilities or obligations for fees registered at the Land Registry.
There are formal requirements for the transfer of property. The transfer of property is by traditio (delivery), symbolised by the exchange of the purchase price in return for the keys.
A transfer of real estate does not affect third parties unless it is registered. To be entered in the land register, the transfer must be by public deed. A deed must be notarised to be a public deed.
The notary needs to see proof of the parties' identities, proof of ownership and certificates showing that all tax obligations have been met.
Real estate tax
Transfer tax is payable by the buyer if the transaction is not subject to VAT. VAT is payable on certain transactions (see Question 20). The rate of transfer tax varies by region.
The transfer of the shares of a company that holds real estate is also subject to transfer tax where both:
Control of the company changes as a result of the transfer.
Real estate comprises 50% of the company's assets.
There is no stamp duty if transfer tax is charged on the transaction. Stamp duty is payable when a transaction is subject to VAT. The rate of stamp duty varies by region.
If the seller is a company or an entrepreneur or professional carrying out a business activity, the transaction is generally subject to VAT.
VAT is also charged in other circumstances, notably on the first transfer of land intended for housing. Second and subsequent transfers of housing are exempt from VAT. The buyer pays transfer tax where the transfer is exempt from VAT.
In some circumstances, a transferor may waive the VAT exemption and invoice the buyer for VAT. This may be advantageous if the buyer is able to reclaim the VAT.
Rates of VAT are between 10% or 21% depending on the circumstances.
Climate change issues
Spain uses regulation and a specific tax regime to meet national and European requirements to reduce greenhouse has emissions. Measures include:
Environmental taxes to discourage the use of fossil fuels.
Tax incentives to encourage environmentally beneficial projects.
Requirements for energy certificates for newly-constructed buildings, under Royal Decree 47/2007 of 19 January, which transposes into national law the provisions of Directive 2002/91/EC on the energy performance of buildings.
Real estate finance
Secured lending involving real estate
Lenders generally use mortgages as security. Mortgages are made by public deed (notarised) and registered at the land registry. Once registered, the mortgage takes priority over the interest of any third party. Anyone with a legitimate interest in a property can find out whether it is mortgaged by consulting the register (see Question 6). Lenders enforce their security through a specific legal process where the property is sold in a public auction. The secured amount is repaid in priority from other debts from the proceeds of sale.
It is increasingly common for lenders to ask for guarantees protection in addition to a mortgage. For example:
Borrowers must take out civil liability insurance policy to guarantee the payment of the mortgage if the property is destroyed.
Mortgages or security over additional property (for example, immovable property fixed deposits in banks) that is not the subject of the loan.
Personal guarantees from the borrower.
Pledges over assets held by an insurance company or funds held in a financial institution.
There is a prescribed procedure to follow if a borrower becomes insolvent. Each registered mortgage has an appraised value.
If the borrower does not repay the borrowed money, the lender can request that the property is sold at public auction. The price at which the property is sold at public auction depends on the appraised value, which is fixed at the time of signing the loan. This value is a guarantee for both parties. The property cannot be sold at auction for less than the percentage of the appraised value price fixed by law. This depends on whether the property is a residence, an office, or a different property.
Other real estate financing techniques
Sale and leaseback is another form of real estate financing that has been used, particularly by some Spanish financial institutions. These institutions raised finance through the sale of their offices to their clients and subsequently leased them back. The institution raised funds and their clients received a stream of rental income.
Real estate leases
Negotiation and execution of leases
Contractual lease provisions can generally be freely negotiated. However, the Real Estate Law sets out some required lease terms including a minimum period for the lease and guarantees for the owner (see Question 33).
A lease may be a public deed or a private document. However, if one of the parties requires the other to register the lease with the Land Register, it must be formalised before a notary as a public deed. Both parties have more protection if the lease is a public, registered, deed. Lessees are required to pay a deposit in order to pay for any damage to the leased building.
Parties to a lease are free to agree rent review provisions. If there is no agreed process for reviewing rent, the landlord (usually the owner) can increase the annual rent in line with the increase in the consumer prices index. The increase in rent with the consumer price index by the landlord to the tenant is voluntary. The payment of VAT on lease rent depends on whether the parties are individuals or companies.
Length of term and security of occupation
Rules relating to the length of leases were recently changed to promote the rental market and to ensure greater security for owners of rental properties. The minimum term for a lease of domestic property has been reduced to three years. The minimum term of a commercial lease is now five years, renewable by another five years unless one of the parties wishes to terminate the lease before the end of the renewal period.
The parties to a lease are free to negotiate and agree these matters. Normal practice is that:
The landlord must expressly agree to a sublet or to the tenant sharing a property.
The tenant must notify the landlord if the tenant transfers the lease. The new tenant will assume all rights and obligations of the original tenant and must provide the same guarantees required from the original tenant, for example a mandatory deposit.
The owner of a leased property continues to be liable to pay property tax (which covers the property, not the ownership), as well as any applicable community fees for the upkeep of common areas. However, the parties may agree that the tenant is liable for these expenses. The transfer of liabilities only binds the parties to the contract. The landlord continues to be liable to any third parties.
Repair and insurance
The tenant is usually obliged to keep the leased premises in good repair. The landlord has to make the property available for let in good repair and is entitled to recover it from the tenant in the same condition.
Tenants are increasingly taking out liability insurance to cover damage to property, but they are not required to do so.
A tenant needs the landlord's permission if they wish to make improvements to the property. Generally a tenant is not compensated at the end of the lease for improvements made to property.
Landlord's remedies and termination
A tenant is not entitled to withhold rental payment in any circumstances. A tenant must make an independent claim for damages or breach of the tenancy agreement. A tenant cannot simply set off the amount they wish to claim against rent payable.
A tenant is also free to terminate a lease agreement due to a breach of the landlord's obligations. The landlord is obliged to provide the tenant with premises in good condition and suitable for its intended use, as agreed at the time the lease is signed.
Planning and development controls
The authorities may expropriate property in certain circumstances and compensate the owner at market value after discussions between the owner and the authorities.
Expropriation can only take place where the land is required for the public benefit and after complying with certain procedures and timeframes.
The urban planning process may be started by owners or by the authorities. Urban planning has become increasingly flexible.
If no response or decision has been received within three months, it is now normal to assume that planning permission has been declined. A negative decision can be appealed before a tribunal. Anyone who can prove that they are an interested party may participate in planning projects. All urban decisions may be appealed before tribunals.
Decisions on land use are becoming more flexible. If there is no response to a request for a decision within three months it is normal to assume that permission to change use has not been granted to appeal the negative decision in court.
Third party rights and appeals
The planning process is open to all who can demonstrate they have an interest in the outcome. All planning decisions can be appealed to the courts by people and companies that can show that they have an interest in the particular procedure.
Legislation tries to be responsive to changes in the real estate market. Recently, legislation relating to mortgage arrears has been changed to strengthen the rights of debtors against creditor banks. The legislation relating to leases has also been changed.
There is no significant reform of real estate sector planned, but legislation should be expected from time to time to reflect changes in the real estate market.
Spanish Land Registry
Description. This is the official website of the Spanish Land registry, which provides various information.
Spanish real estate cadastre
Description. The official website of the real estate cadastre. The real estate cadastre is an informative registry. Registration in it is not valid to recognise property ownership.
José Vicente Morote Sarrión, Partner
Olleros Abogados, SLP
Professional qualifications. Degree in Law, Special Recognition, University of Valencia. Degree in Law, Special recognition, University of Bologna. Doctor in Law, University of Bologna. Master in Urban Planning, (La ordenación autonómica del territorio (Urban Planning in Autonomous regions), ADEIT.
Areas of practice. Head of the firm's public and regulatory law practice. Public and regulatory law; real estate; environmental law
Non-professional qualifications. Professor of Administrative Law of the Law Faculty of the Universidad Católica de Valencia San Vicente Mártir.
Languages. Spanish, English, French, Italian, German.
Professional associations/memberships. Member of the Valencia Bar.
Recent transactions. Lawyer of the Year in Administrative Law, Valencian Community (Spain), Best Lawyer 2014 in Administrative Law, Environmental Law, Land Use and Zoning Law and Real Estate Law. Best Lawyer 2013 in Administrative Law and Real Estate.
- El Derecho en tiempos de crisis. Homenaje a Don Rafael Gómez- Ferrer (The law in times of crisis). Edited by Tirant Lo Blanch. Valencia. 2014. A tribute to D. Rafael Gómez-Ferrer.
- Chapter 15, La reforma del régimen Local (Local government reform). Aranzadi. 2014.
- El sistema autonómico en la encrucijada. Análisis crítico de las propuestas de reforma. (The autonomic system in the crossroads. Critical analysis of the reform proposals), Issue 57, Journal of Valencian Autonomous Studies, 2012.