When a sale takes place, it is usual for the signing of the deed before a Notary Public to coincide with the payment of the agreed price to the seller. However, this does not always have to be the case. In this week’s article we analyse the Resolutive Condition. Regulation. Main characteristics. And how it can be an excellent alternative to financing when purchasing a property in Spain.
Purchase and sale of real estate in Spanish Law.
Article 1445 of the Spanish Civil Code defines a contract of sale as a legal transaction in which one person “undertakes to deliver a certain thing and another to pay a certain price for it”. When the buyer does not have the necessary funds, it is usual to resort to financing formulas such as a mortgage loan. But what happens when it is not possible to obtain a mortgage.?. Is there an alternative?.
The Resolutive Condition in the Spanish legal system.
The resolutive condition is regulated in articles 11 of the Mortgage Law, art. 59 of its Regulation and in art. 1504 of the Spanish Civil Code.
The main functions of the resolutive condition are twofold:
– On the one hand, it allows the buyer to acquire possession and ownership of a real estate property, despite not having the necessary funds to pay its price at that time.
– On the other hand, it constitutes a guarantee for the seller, who may terminate the sale and repossess the property sold if the buyer does not pay the agreed price in full within the stipulated deadline agreed by both parties.
Registration in the Land Registry. Real guarantee.
For the Resolutive Condition to act as a “real” guarantee (i.e. for it to be tied to the property), it must be registered in the Land Registry. Otherwise, the seller would only be liable for the deferred payment with his own assets. In addition, the registration will produce full effects against third parties, will take precedence over other charges or liens, etc. For all the above, it is highly advisable to subordinate the effectiveness of the sale, to the Resolutive Condition being recorded in the Land Registry.
What happens if the buyer defaults on his agreed payment obligations?.
If the buyer defaults, the seller will repossess the property. Normally, the buyer will also forfeit all sums paid to the seller up to that point. It is also possible to fix a penalty for damages caused to the seller. In order to effectively terminate the sale and purchase, it will be necessary for the seller to demand payment through a notary or in court.
What happens if the buyer complies with the agreement and how is the resolutive condition cancelled?.
Once the buyer has paid the full price, it is advisable to cancel the resolutive condition so that the property is free of encumbrances. This implies both parties (buyer and seller) declaring before a Notary that the deferred amount has been paid. This new deed will be taxed by AJD Stamp Duty Tax (in the Valencian Community, taxed at 1.5%).
However, it may be possible to avoid this expense. Agree that the resolutive condition will be cancelled when a specific period has elapsed since the payment obligation expired. In any case, from January 2022, it could be possible to cancel a resolutive condition by extinction if more than 6 years have passed since the deadline for payment.
At White Baos Lawyers we are experts in Real Estate Law, and we have been advising our clients for more than 20 years in the purchase and sale of real estate in Spain. If you want to know more about the Resolutive Condition, etc. please do not hesitate to contact us. We will study your case and offer you expert legal advice on the subject.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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