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.
THE CORPORATE REAL ESTATE MARKET
1. What have been the main trends in the real estate market in your jurisdiction over the last 12 months? What have been the most significant deals?
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
2. What structures do investors typically use for real estate investment in your jurisdiction and what are the main advantages and disadvantages of each (for example, flexibility and tax transparency)?
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.
Restrictions on foreign ownership or occupation
4. Are there restrictions on foreign ownership or occupation of real estate (including foreign ownership of shares in companies holding real estate)? Are there restrictions on foreign guarantees or security for ownership or occupation and on lending for the purchase of real estate?
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
5. What constitutes real estate in your jurisdiction? Is land and any buildings on it (owned by the same entity) registered together in the same title, or do they have separate titles set out in different registers?
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.
6. How is title to real estate evidenced? What is the name of the public register of title and the authorities responsible for managing it? Is electronic access and electronic conveyancing available?
General
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.
Registration process
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.
7. What are the main information and documents registered in the public register of title? Can confidential information or documents be protected from disclosure in the public register of title?
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.
8. Is there a state guarantee of title? Is the authority that manages the public register liable to pay compensation for any errors it makes in relation to title registration? Is title insurance available and is it commonly used?
The state does not guarantee title. However, the law implies that property registrars could be liable for errors made in the course of their work and registrars may provide guarantees (paragraph 296, Decree 8 February 1946). Errors in the registration system are rare.
9. How can real estate be held (that is, what types of tenure and other main ownership rights exist over land)?
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:
- Use.
- Room.
- Emphyteusis.
- Mortgage.
- Census.
- Servitude.
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
Preliminary agreements
10. What types of preliminary agreements are typically used in the sale of real estate? Are they legally binding?
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.
Sale contract
11. Briefly outline the typical main provisions of a corporate real estate sale contract and main real estate provisions of a typical share purchase agreement.
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.
Due diligence
12. What real estate due diligence is typically carried out before an acquisition and what key areas does it cover? Which documents are typically reviewed? Which specialist advisers are usually involved and which reports do they typically produce?
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.
Sellers' warranties
13. What real estate warranties are typically given by a seller to a buyer in the sale of corporate real estate and what areas do they cover? What are the main limitations on warranties, for example are they typically qualified by disclosure?
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.
Liability
14. Does a seller have any statutory or other liability to the buyer in a disposal of real estate?
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.
15. Briefly outline the environmental legislation and potential liability for a buyer in a purchase of real estate. Is it common to carry out environmental surveys and searches and to obtain environmental insurance? How is environmental liability typically dealt with in the sale contract?
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.
16. Can an owner or occupier inherit liability for other matters relating to the real estate even if they occurred before it bought or occupied it? Can a seller or occupier retain any other liability relating to the real estate after it has disposed of it?
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.
Completion arrangements
17. What are the typical arrangements and main documents required for completion of the sale? When does title transfer and what are the formal legal requirements to execute the sale documents, transfer the real estate and register the change of title? Is notarisation required?
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
18. Is stamp duty/transfer tax (or equivalent) payable on the purchase of real estate? Who pays, what are the rates and are there any exemptions? Does it apply to the transfer of shares in a company holding real estate and at what rate?
Transfer 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.
Stamp duty
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.
19. Are any methods commonly used to mitigate real estate tax liability on acquisitions of large real estate portfolios? What is the general approach of the tax authorities in your jurisdiction to such schemes?
It may be possible to mitigate tax liability when real estate is acquired. However, the tax authorities have four years to challenge the amount of tax paid.
20. Is value added tax (VAT) (or equivalent) payable on the sale or purchase of real estate? Who pays? What are the rates? Are there any exemptions?
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.
21. Are municipal taxes paid on the occupation of business premises? Are there any exemptions?
Property owners pay municipal tax whether or not the property is used for business purposes. Trade tax is another form of municipal tax and may apply where the premises are used for business purposes.
CLIMATE CHANGE ISSUES
22. Are there targets or incentives to reduce greenhouse gas emissions from buildings in your jurisdiction? Is there legislation requiring buildings to meet certain minimum energy efficiency criteria?
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.
23. Are provisions relating to the energy efficiency of buildings commonly included in contracts for the sale of real estate or in leases (for example, green leases)?
From 1 June 2013, buyers or tenants of all or part of a building are entitled to see the building's energy efficiency certificates (Royal Decree 23/2013 of 5 April). It is unusual for leases to include obligations to improve the sustainability of the building.
REAL ESTATE FINANCE
Secured lending involving real estate
24. Briefly outline the typical security package required by lenders in relation to real estate lending. How are the most common forms of security interest relating to real estate created and perfected (that is, made valid and enforceable)?
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.
25. What other real estate related measures do lenders typically take to protect themselves against default by the borrower?
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.
26. Can lenders incur environmental liability? What measures do lenders typically take to manage potential environmental liability?
Lenders cannot incur environmental liabilities.
27. Briefly outline the main remedies for lenders in relation to the secured real estate if the borrower defaults on the loan. What is the effect of the borrower's insolvency on the lender's remedies?
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.
28. Briefly outline key additional issues for lenders in relation to construction and development projects.
Payments under some project finance loans are guaranteed by a right to receive income generated by the project. This type of guarantee was frequently seen on renewable energy projects, for example on the construction of wind farms of solar powered gardens, biomass, and so on.
Other real estate financing techniques
29. Are other real estate finance techniques commonly used in your jurisdiction? For example, real estate securitisation and sale and leasebacks.
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
30. Are contractual lease provisions regulated or freely negotiable? Which legislation applies?
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).
31. What are the formal legal requirements to execute a lease? Does the lease have to be executed by certain parties or as a deed? How do the formalities differ for a company, partnership and for individuals?
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.
Rent payments
32. How are rent levels usually reviewed and are there restrictions on this? Is stamp duty and VAT (or equivalent) payable on rent? Is a rent security deposit required and does it have to be managed in a certain way?
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
33. Is there a typical length of lease term and are there restrictions on it? Do tenants of business premises have security of occupation or rights to renew the lease at the end of the contractual lease term?
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.
Disposal
34. What restrictions typically apply to the disposal of the lease by the tenant? Can the tenant assign or sublet the lease with the landlord's consent? Can tenants share their premises with companies in the same group? What is the effect of a legal reorganisation or transfer/sale of the tenant on the lease and on a guarantee of the lease?
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.
35. Does a landlord or tenant retain any liability under the lease after the lease is assigned?
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
36. Who is usually responsible for keeping the leased premises in good repair and for insuring the leased premises? Are there provisions for the ownership of lease improvements?
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
37. What remedies are available to a landlord for a breach of the lease by the tenant? On what grounds can the landlord usually terminate the lease and what restrictions and procedures apply? What is the effect of the tenant's insolvency under general contract terms and insolvency legislation?
There has recently been a reduction in the time a landlord must wait to terminate a lease if the tenant fails to pay rent. Eviction proceedings may now begin once a landlord can prove that one month's rent has not been paid. The costs of the eviction procedure are payable by the tenant.
38. Can the tenant withhold rent payments in certain circumstances, for example for serious damage to the leased premises? Can the tenant terminate the lease in certain circumstances?
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
39. In what circumstances can local or state authorities purchase business premises compulsorily? Is the purchase price market value?
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.
40. What authorities regulate planning control and which legislation applies? Is there specific protection for special categories of buildings such as historic buildings?
Both the state and the autonomous communities enact planning law. Local authorities control the application of the law and the grant of planning permission.
Certain categories of building receive more protection and control in the interests of preservation.
41. What planning consents are required for building works and the use of a building?
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.
42. What are the main authorisation and consultation procedures in relation to planning consents?
Initial consents
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.
Reform
43. Are there proposals to reform real estate law and are they likely to come into force and, if so, when?
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.
Source: Practical Law