This article outlines the elements of a sale and purchase contract in Spanish law, including the principle of consent, and examines their role within the process of a property transaction. Also covered in the article is the nature of the property transfer.
I would like to talk today about the sale and purchase contract of a property. Straightaway, I would like to point out, that the contract legal system in Spain is based upon the principle of consent. Just the consent. Once the will of two parties agree on the basics of the contract, (the property and the price for instance) the contract exists, and it is valid end neforceable. Simple as that.
What it is a property sale and purchase contract?
It is an agreement between two parties in which one of them commits to sell to another one, who commits to buy, a specific property for a specific price. That is it.
So, both parties commit to do something: one to sell and the other one to buy. This means that the seller does not have to be the legal owner of the property which is selling at that moment but will need to be at the moment when it has to transfer to the buyer. And this is no problem. If the seller is not able to be the owner at the moment when the property has to be transferred to the seller she will breach the contract and will either be forced to sell (if that is yet possible) or just to compensate to the buyer.
So once you enter into a sale and purchase contract of a property, you are committed to either sell or buy that property, according to the specific conditions agreed between the parties. There are no more effects.
What about the transfer of the property from the seller to the buyer?
This is another issue. The sale and purchase contract binds the parties to sell and buy, but in order to transfer the property between the parties, something else is needed. And this is the possession. Basically, the property transfer only occurs when two elements joint: one is a valid title and the other one is the possession. A valid title is for instance a sale and purchase contract. And the possession is when somebody takes possession of the property. Like that. Take possession. When a title sale and purchase deed of a property is signed before a pubhlic notary, the law understands that the possession takes place. Once the deed is signed the property transfer has occurred.
Thank you for your time and attention and I hope this information is of use. You are very welcome to share if you liked it. You might be interested in this other posts about penalty clauses, taking a property off the market or the «arras penitenciales».
Please, note that this is general information. This is not specific legal advice. It is advisable to seek legal advice for any specific legal issue.