It may seem strange to ask such a question but bizarrely this is one of the most common questions we get asked. The simple answer is no, you don’t. However, it would be very naive or even foolish look to buy a property anywhere in the world without instructing a lawyer or solicitor to help you to do so.
Many people mistakenly believe that a lawyer is just an added expense when budgeting to buy a property abroad. There are several reasons for this;
1. They are told by the selling agent that they don’t need a lawyer.
This is of course technically correct. There is no legal requirement to use a lawyer and technically you can do this yourself. However, you would never buy a property in the UK for example without instructing a UK solicitor so why would buying a property overseas without using a lawyer be any different in a country where you don’t know the legal system, where you have probably never bought a property before and you may not be able to speak the language. Put another way – you don’t need a dentist to carry out root canal treatment but you wouldn’t even dream about doing it yourself! It is when clients don’t use an independent lawyer to help them buy their property abroad that they invariably find themselves in serious financial trouble.
2. They are told that the Notary will do everything for them.
Foreign estate/selling agents and developers don’t like lawyers and solicitors to get involved when clients are buying property overseas as they (the agents and developers) are worried that the lawyers will potentially expose any faulty or suspicious issue with the property and therefore get in the way of their sales commission. They will therefore often tell a buyer that they don’t need a lawyer and only need a Notary to help them buy.
Whilst it is true that in many countries a Notary is involved in the transfer of property, that isn’t the whole story and to say that the Notary does everything is a vast exaggeration. In Spain, for example, the Notary only gets involved at the last stage of the transaction and is there only really to witness the transfer from the seller to the buyer. He or she doesn’t get involved in a whole range of things that are required before you get to the final stage of signing the title deeds; such things as,
a. Advising on the contract and the terms of that contract before you sign it.
b. Carrying out initial checks on the property to identify whether the seller owns it, whether there are any charges registered on it, whether it has planning permission and so on
c. Advising you whether it is safe to pay the deposit
d. Advising you on surveys and valuations
e. Advising you on things like mortgages
f. Assisting you with opening bank accounts
g. Drafting Powers of Attorney
h. Advising you on who should buy the property
i. Advising you on tax issues both in the UK and in the country that you are buying in
j. General hand holding throughout the transaction
The Notary really gets involved at the end of the transaction and even then his or her role is limited to certain things. Despite the fact that in some countries like Spain, France, Portugal and Italy you need a Notary to finalise a purchase of property the Notary is not a substitute for obtaining proper legal advice from a lawyer or a solicitor. The Notary will always be happy to work with your lawyer or solicitor.
3. Cutting corners and saving costs
Unfortunately many people fail to do their research when buying a property overseas. They assume that buying property abroad costs the same as buying a property in the UK. It doesn’t. Often the costs are significantly higher. Again for example in Spain, the costs can be 11-12% of the value of the property (depending on how much you are spending and also the region of Spain that you are buying in).
Many people set their budget and assume this is how much they can spend on the property in the country they are looking to buy in. What often happens is they find a property first, fall in love with it and then look at the costs and find the costs are higher than they anticipated. This inevitably leads to looking at ways of cutting costs. Sadly, one of the first things that goes out of the window is actually the last things that should be cut back on – such as fees for lawyers, surveyors and valuations. These things, when cut from the budget, are always when the otherwise avoidable issues occur and many of these horror stories end up appearing in the press.
4. The agent will tell you that they can help you do the legal work
We are finding more and more agents becoming involved in the legal work required to buy a property abroad. They will often have an old draft purchase contract that a lawyer drew up many years ago and after altering it slightly will tell you that it is OK to sign. They often inform you that the Notary will carry out searches at the end of the transaction but that the property is OK. They will help you to make the deposit transfer. Sometimes of course this is done by trustworthy and experienced agents in a genuine attempt to be helpful. In other instances it is down to simply wanting to ensure that nothing gets in the way of their sales commission. It is always worth having in mind the agent is instructed by the seller to sell the property. They do not act for the buyer and are certainly not there to act as the buyer’s solicitor or lawyer. They are rarely legally trained and although they may have a superficial understanding of the legal process of buying a property in that country it won’t be the same as using a duly authorised and legally qualified solicitor or lawyer.
5. They don’t understand how complicated the process of buying a property abroad can be.
Many people vastly underestimate the amount of work that goes into the purchase of a property abroad. They often, for example, don’t understand the thought processes that goes into a purchase contract and what is looking to be achieved.
Some laws are on a national level but some may only be on a regional level.
If you would like to know more about using a solicitor when buying a property abroad 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.