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5 Essential Buying Fundamentals to Take into Consideration

1. RESEARCH INTO THE LEGAL STATUS OF THE PROPERTY

It is crucial to do a complete analysis on the updated main documents of the property -

• Land Registry Certificate - This reveals the correct registration of the property on the sellers names, any onus or charges affecting the property, as well as any further relevant information that the buyer must be aware of – (this is also where the buyers names will be shown after completion of the acquisition to prove ownership);
• Tax Department Certificate – This will clarify some relevant information on the tax perspective, such as the VPT – Property Tax Value – which will allow the calculation of the annual taxes payable.
• Approved Plans and Habitation License - These documents, duly combined, will allow to have a preliminary view of the property – nevertheless, in our days we consider to be essential, mainly in villas acquisitions, that a proper survey is carried on the property, not only to check the “sound” of its constructions conditions, but also to understand if the plans approved for the property do match 100% with the real existing property; Sometimes, for various reasons, they may not match and it is important to be aware of the level of risk involved and its consequences;
• Complementary Documents - It is important to understand where the property is inserted - habitational development, condominium, touristic development – so that any restrictions and/or conditions can be disclosed;
• Energy Certificate Technical File – This reveals the property’s energy efficiency and its technical/ functional characteristics. These documents complete the usual set of documents that need to be provided and analysed before any commitment.

Please note that, besides the above documents, there will be some properties and/or locations, that may require more, less, or different documents, and/or lead to specific types of research (ex. Plots of land for construction/development, commercial properties, planning issues, restrictions, public domain, preference rights, etc).

 

2. BE AWARE OF THE COSTS OF ACQUISITION AND ANNUAL MAINTENANCE

• This will avoid surprises. Bear in mind that any property acquisition leads to costs and taxes according to the specific property: these taxes (transfer tax and stamp tax) and costs (registration costs, notary costs, lawyer fees, surveyors fees, etc), are paid only once, but should be known or calculated before the commitment;
• The annual taxes and costs related with the property. There are, of course, costs that will be necessary depending on yours and the property needs (i.e. a gardener, or swimming pool maintenance), but it is important to understand if there are any costs related with the location the property is inserted in (i.e. security, infrastructures, etc); as to the taxes, it is essential to be aware of the taxes due (IMI and/or AIMI – municipal taxes).

 

3. PROMISSORY CONTRACT - COMMITMENT!

In Portugal, it is often that the commitment on a property acquisition begins with the signing of the Promissory contract. This contract, despite not being where the transfer of title of the property ownership is stated, it will reflect all the business conditions agreed such as the price agreed for the property, method of payment, the deposit/down payment (usually 10% of the price), deadline for completion, obligations to be fulfilled by both parties, any agreed conditions as well as the consequences of non-fulfilment of the clauses included on the contract;

When we first mentioned that it marks the beginning of a commitment it’s precisely because, from the moment the promissory contract is signed, both parties will start having consequences on contract breach. The most relevant one is the general rule that states that, in case the buyer withdraws, he will then lose the deposit paid to the vendor; if the seller is the one to withdraw, he will be obliged to reimburse the deposit amount paid to the buyer together with an equal amount as a compensation resulting from the breach. Having said this, there is, alternatively to the deposit regime, the possibility of specific performance which, in any case, will work much better for the buyer having in mind that it is, in principle, easier, to oblige the seller to sell, than to oblige the buyer to buy.

 

4. PREPARE FOR THE DEEDS

Be aware that from the moment of signing of the promissory contract, generally there is not much more to be done until completion of deeds. It is important that the deeds are prepared in due course to avoid complications, delays, or, in some cases, even breaches of contract clauses (mainly the deadlines).

The buyer must organise the funds to pay the balance, to pay taxes of acquisition, to pay the notary fees and registration fees. This is usually done through the buyer’s representatives whom must liquidate the taxes before the deeds take place and pay them simultaneously with the deeds. Sometimes the transfers of the needed sums may take longer than what is expected. It is wise to check before with your bank.

All the possible apportions should be totally dealt with on the moment that the deeds are signed. The apportions are the annual payments that are usually divided between buyers and sellers according to each ownership period of the year.

Do not forget to issue (so that this may be in force from the moment of signing of deeds) insurance for the property. After the deeds take place, the insurance that was in the name of the previous owners will no longer protect the property.

 

5. COMPLETION DEEDS

This is the ultimate phase of the acquisition process (where we include the registration). The transfer of property title and the possession of the property is formalised by the signature of the public deeds, usually done in the notary by the parties or their representatives. The title deeds may also be done privately (it happens often when banks are involved in the acquisition).

After the deeds are signed, the registration of the property in the name of the buyers should be immediately submitted to the Registration Offices to avoid any risks. The registration will be completed in a couple of days and the owners will be able to see their names duly registered as property owners.

 

Information provided by renowned lawyer, Dr. Tiago Gonçalves Luis from Tiago Luis, Josue Coelho & Associados International Law office in Faro. For more information, please contact their law office at:

 

International Law Office

T: +351 289 887 440

geral@international-lawoffice.com