MINORS do not have the capacity to sell real estate, and their legal representatives, (usually their parents or legal guardians) must act, therefore, when where are in a property sale by a minor, in order to do it on their behalf.
But the Spanish Civil Code (CC), states that for these cases an extra guarantee should be put in place in order to define the interests of the minor.
This is because of the generally high value of most properties, and legal representatives must demonstrate that they act to the benefit of the minor.
Thus, article 166 Cc, requires that parents, in order to sell a minor’s real estate, must obtain prior judicial authorisation. This will be after hearing from the Public Prosecutor’s Office.
When the parents of minors come to our law firm to find out if they can sell an asset that belongs (part or whole) to a minor, the answer is YES. But it must be proven before a judge, that the sale of said property is in the best interests of the minor.
There can be a number of reasons, for example;
The property has become a burden and a cost for the minor which they cannot afford.
The money from the sale is required by the minor in order to pay for necessary goods or services such as medical treatment, etc.
Possibility of a direct sale.
The Voluntary Jurisdiction law provides for the possibility of requesting and obtaining an authorisation for a Direct Sale (that is, directly between parents or real estate agents, and buyers).
This is a better option than selling through a public court auction, as you are likely to obtain a higher price and the transaction should be quicker.
In this case, an expert opinion or appraisal must be obtained which indicates the real market value of the property.
Request for prior authorisation
As indicated, if you represent a minor and want to sell a property, you must submit this request for judicial authorisation prior to the sale.
It is NOT necessary to have a preliminary sale agreement. And it will be sufficient to present an appraisal or valuation that indicates the value of the property, to allow the judge to authorise a sale for a value equal or higher than the appraised value.
Documents to be presented
Documents that prove property rights must be submitted, as well as confirmation that the applicant is the minor’s legal representative and an indication of the value of the property (with the indicated appraisal).
Finally, evidence of why the sale should be allowed needs to be provided.
This court authorisation, will allow the minors representative to sign a private contract of sale, or go to the notary to sign the sale. After the sale, the court should normally be informed of the destination of the money obtained, in order to confirm that the minor has received it.
For any questions about the transfer of real estate,and Property Sale by a minoror the incapacitated, contact us and we will help you.
The information provided in this article is not intended to be legal advice, it simply transmits information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel: +34 966 426 185
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