If you have bought a property abroad in the last 10 to 15 years in countries such as Cape Verde, Turkey, Morocco, Brazil or the UAE then the likelihood is that the property was still being built when you committed to buy. This is commonly known as buying a property “off plan” – i.e. you can’t view the completed property but can look at the future plans for the project and or property.
 
When you buy a property off plan the purchase contract should have a clause which provides a deadline for the completion of the unit; i.e. when the developer should deliver or “hand over” the property to the Buyer. This relevant clause should set out clearly what penalties will apply to the developer and what legal (and financial) redress a purchaser would be entitled to expect should the developer fail to deliver the property within those parameters. 
     
Some developers in recent years have heavily relied upon the Force Majeure clause in their contracts to cover themselves and therefore it is worth looking at what is and what isn’t deemed an Act of God.
 
There is no doubt that if natural climatic events such as hurricanes, lightning strikes and flooding, damage a property in the course of construction and, as a direct result, these events put back the construction; then this is something deemed completely outside the control of the developer or builder and would be considered to be a Force Majeure occurrence.
 
Equally if there is a war or a terrorist attack or a general labour strike that stops construction then this could also be seen as Force Majeure occurrence.
 
However, if it could be reasonably known that a particular event or a set of events were going to happen when the contract was signed, and could therefore have been foreseen, then legally this may not be considered to constitute Force Majeure.
 
Force Majeure clauses should, ideally, set out the examples of what would be considered to be Force Majeure for the purposes of that contract. By doing so the contracts - and both parties - have an element of certainty and a framework to assess what is covered by that clause. However, some developers have been reluctant to do this, and in time claim that any delay, even events which are clearly attributable to the developer, are in fact Force Majeure.
 
We have seen over recent years seen some foreign property developers try and claim that the failure to obtain planning permission for their project constitutes a Force Majeure event. It does not. The failure to obtain planning permission in virtually all cases is entirely down to the developer as they should not start to build, market or sell any given project unless it is expressly stated the planning permissions are subject to future approvals, and that the purchasers as a consequence will have the right to terminate the contract and recover any invested amounts paid to that date should those permissions ultimately be withheld.
 
In the United Arab Emirates and in Cape Verde, we have seen extreme examples of developers claiming that certain building plots are made up of  the “wrong type of sand” for building upon and therefore, they cannot meet their contracted construction deadlines. Again, this would not constitute the Force Majeure clause being invoked or any legal justification or argument for a delay to the delivery of the unit and we have successfully challenged these arguments in the courts.
 
Force Majeure clauses are useful in allowing unforeseen events not to frustrate a contract but should not be seen as a potential get out of jail free card for foreign property developers.
 
If you have a potential problem with a property that is being built off plan abroad and hasn’t been completed on time and would like some advice about your options, you can speak to one of our overseas property legal team
 
Disclaimer – International legal issues are a complex area of law and this information is no substitute for independent legal advice on an individual basis taking into consideration your personal circumstances and legal requirements. This information is provided to provide general information only and was correct at the time of publishing. The legal position in relation to international transactions can change frequently and this page may not have been updated following any changes in the law. You should therefore not rely on this information and should seek legal advice in relation to your personal circumstances.

If you are buying a property abroad which is in a complex then the likelihood is that there will be some form of Community of Owners. You will own your property and also a share of the communal areas – after all somebody has to own them. This is similar to the concept of Commonhold property in the UK
Because of this it is important to make sure that you understand how the Community of Owners works.
   
Community Fees
You are obliged to pay your share of the community fees. These are normally set out in the annual budget at the General Meeting. You will pay your share of the total cost according to your percentage of the Community of Owners. Therefore if the share that corresponds to your ownership is 1% of the total then you will also be responsible for 1% of the total costs.
The Community costs include things such as insurance, gardeners, swimming pool cleaning, lift maintenance, general maintenance, cleaning and general administration costs such as the fees for the Condominium Administrator who is a professional figure. The insurance will normally cover the buildings as a whole but it is still worth double checking this rather than taking this for granted.
If you do not pay the community fees then the Community can register a charge against your property and ultimately can force the sale of it at auction to recover the money due.
 
Annual meetings
You have the right to attend any meetings that happen during your ownership. The voting at the meetings normally follows the percentage principal – i.e. if you have 1% of the Community of Owners then you also have 1% of the votes at meetings.
At the meetings you have the right to raise issues that affect the Community of Owners and to vote on the appointment of officers. You have the right to put yourself forward for a position that becomes available.
You have the right to be informed of when the meetings are to take place in advance.
 
Some of the resolutions which need to be passed at the meetings will require differing percentages of votes to approve. Votes to sell some communal areas or to change the table of thousands, for example, require unanimity whereas other votes will require just a majority of the shares.
 
Community Rules
You have the obligation to follow the Community Rules. The Community will have a set of rules which are designed to maximise the enjoyment and safety of the owners in general. Normally they are quite sensible things such as no swimming in the pool after dark or no loud music after a certain point of the day.
 
The reality
In theory the running of a Community of Owners should be quite a democratic process. However, what you tend to find is that the majority of owners do not get involved in meetings and then a small number of owners take charge and run the community themselves. Sometimes this works and other times it can cause problems. It is worth asking how much the community fees are each year as well as identifying what percentage corresponds to your property – 5% of a small amount may be less than 1% of a large amount!
 
Your lawyer or solicitor should identify whether the Community Fees have been brought up to date during the purchase process and make sure that everything is paid before the signing of the title deed.  This will ensure that there are no outstanding debts for which you may become liable.
 
If you would like to know more about how a Community of Owners for properties abroad functions then you can contact our international conveyancing team
Disclaimer – International legal issues are a complex area of law and this information is no substitute for independent legal advice on an individual basis taking into consideration your personal circumstances and legal requirements. This information is provided to provide general information only and was correct at the time of publishing. The legal position in relation to international transactions can change frequently and this page may not have been updated following any changes in the law. You should therefore not rely on this information and should seek legal advice in relation to your personal circumstances.

When you buy a property in the UK you will probably know which lawyer you are going to use to help you buy. They could be somebody that you have used before. They could be your nearest local solicitor. They could be somebody that is recommended to you by a friend or a firm of solicitors that you have seen advertised somewhere.
           

1. Do they understand the law of that country?
    
   This may seem obvious but you need somebody who understands the law of that country. If you are buying a property in Spain you need a lawyer who understands Spanish law. If you are buying in Portugal you need a solicitor who understands Portuguese law and so on..
    
2. Do they understand UK Law?
    
   This is less obvious, but equally important. Doing something in one country invariably has an effect on another country. Let us take the example of a British person who lives in the UK but owns a property in Spain, Cyprus, Portugal, Italy etc.. If they rent out the overseas property they will have to pay income tax in the country where the property is based, but also declare that on their UK tax returns. If they die, the overseas property will be dealt with in the country where it is situated, but will also form part of your overall estate and will therefore need to be taken into consideration in the UK inheritance. Should they sell the overseas property there will be Capital Gains tax in that country and potentially in the UK as well. There is an interaction between the two laws and you need somebody who understands both, and without specialist knowledge you can end up making decisions which may be perfect for a national of that country but may have a knock on negative consequence back in your home country.
    
3. Are they independent?
    
   This is absolutely vital. You would never use the same lawyer as the seller when buying a property in the UK so why should it be any different when buying a property abroad? You need to have an independent lawyer – somebody who is going to look after your interest and your interests alone, not also be looking out for the interests of the seller, agent or developer.
    
   In the UK it is prohibited for the same lawyer to be acting for the buyer and seller at the same time as there is a conflict of interest. In many other foreign jurisdictions this also applies and it is prohibited for a lawyer to act for both parties. However, some foreign lawyers ignore these requirements and persuade themselves that it is OK even though it isn’t.
   
   In many cases the lawyer isn’t “technically” acting for the seller or agent but is recommended by them to all buyers. This is, in many respects still a conflict of interest. Is that lawyer going to risk not being recommended by that agent (and therefore lose a source of introductions) by telling you that there is a problem with the property or are they going to play down things for the benefit of the agent’s commission and introductions to them?
    
4. Can they speak your language?
    
   Many foreign lawyers of course can speak English and will possess a good understanding of the language, but is their English good enough to explain often complex legal issues to you? It is surprising how often somebody will instruct a foreign lawyer and then half way through a transaction make contact with us to act as a conduit with them and their foreign lawyer as they can’t quite fully understand what the lawyer is trying to say even though they are using English words. Similarly some words which can appear on the face of it very similar in one language can mean something very different in another. Unless you fully understand the exact meaning of a word and any nuances of the language then it is quite easy to say something which can be misunderstood as something quite different. When talking about legal issues you cannot afford to have a misunderstanding. 
    
5. Are they regulated?
    
   This again may seem fairly obvious. By instructing a regulated firm of Solicitors in the UK you are assured that you are significantly covered should that lawyer make a mistake which leads to a problem for you in the foreign transaction – Why Use Judicare.
    
6. Are they insured and if so by how much?
    
   In the UK solicitors have to have Professional Indemnity Insurance to cover the unlikely event that they make a negligent mistake in the advice that they give you. In some countries there is no requirement for compulsory Professional Indemnity Insurance and in other countries the level of cover that is covered as a minimum is very low and wouldn’t even cover a typical purchase of property. As UK solicitors our minimum level of cover is far in excess of the minimum required in many countries. UK Solicitors have to have a minimum insurance of at least £3million per claim. Each Professional Indemnity Insurance policy is obtained individually by the firm of solicitors with their insurers and they cannot practice without it. In Spain, for example, the situation is very different. You simply pay your annual fees to the Colegio de Abogados (Law Society) and as part of that you get the minimum Indemnity Insurance cover. That amount can be as low as €18,000, which wouldn’t even cover the deposit on most purchases of property let along a whole property. There is no requirement to top up this insurance to cover a higher amount.
    
7. Experience
    
   How much experience does the lawyer have not only in the field of law but also experience in dealing with British clients? Many foreign lawyers are sole practices, and this at times leads to trying to cover everything. British clients are used to expecting a certain level of service from Solicitors and this can often result in communication issues in particular in the buying process of a property or a litigation case which may be in court in a foreign jurisdiction for many years.
    
8. Practical – solves problems
    
   Many lawyers can be very academic and technical in their approach to legal issues. This is clearly needed but you also need a lawyer who will find those important practical solutions to legal problems as a result of experience over a long period of time dealing with foreign matters.
    
9. Are they members of any Association?
    
   Do they go over and above their minimal legal requirements by being members of a relevant association. For example, we are members of the Association of International Property Professionals (www.aipp.org.uk). In fact our own Peter Esders is the Vice Chairman of the AIPP.
    

If you would like to know more about how we can potentially help with your purchase of a property abroad from a legal point of view then you can contact our international legal team
 
Disclaimer – International legal issues are a complex area of law and this information is no substitute for independent legal advice on an individual basis taking into consideration your personal circumstances and legal requirements. This information is provided to provide general information only and was correct at the time of publishing. The legal position in relation to international transactions can change frequently and this page may not have been updated following any changes in the law. You should therefore not rely on this information and should seek legal advice in relation to your personal circumstances.