Case lab of the week. Real consultation made by an English client: “I am the owner of 1/2 of a dwelling in Spain. Can I sell my share to a third party, against the opposition of the other joint tenant”?
ADVICE: This important question has raised a lot of controversy among many legal practitioners, due to the inner complexity of the matter. Therefore, I will try to offer you in a nutshell, an easy and practical advice, in case you might be affected by this problem in the future.
In the first place, all joint owners have a preferential right to buy from each other his or her own share on any property located in Spain. This right is called “ right of first refusal”, (in Spanish “derecho de tanteo”).
This means in practice that, before actually signing any private purchase agreement with a stranger, you would be obliged to inform the other joint owner in an official way (by burofax or similar system), about your intention to sell your share to another buyer.
Subsequently, the joint owner could be given the possibility, to either decide to buy your share at the agreed price or alternatively to refuse to buy from you. In this second option, you would obviously be able to sell freely to the third buyer of your choice.
Secondly, at the event of dispute between both joint owners, the only alternative would be to settle the matter in Court. However, this option can be expensive and at the end of the day impractical, because the final price assigned by the Court to the property, would be much lower than its standard market price.
Thirdly, bear in mind that in case you might decide to go ahead and sign a purchase agreement by receiving money from a third party, without following the required legal formalities, the joint owner could take you to Court, in order to “reverse the sale and repurchase your share”.
This right is called “right of redemption or “derecho de retracto” in Spanish, and it is regulated in articles 1521 to 1524 of the Spanish Civil Code. Please find below an extract for your own information:
“Article 1,521. Legal redemption is the right to become subrogated, under the same conditions provided in the contract, in the position of the person who acquires the thing pursuant to a sale or dation in payment.
Article 1,522. The co-owner of a thing owned in common may use the right of redemption in the event that the shares of all other co-owners or of any of them should be disposed of to a stranger. Where two or more co-owners should wish to use the right of redemption, they may only do so pro rata to their share in the thing owned in common”.
In conclusion, remember that going to Court in Spain is always a lengthy and costly process that should only be taken as a last resort. Subsequently, settling a dispute “amicably out of court”, will always be a much more advisable option than facing protracted litigation with an uncertain result.
Finally, we hope you find this information useful and remember, should you ever need a reliable, 100% independent, honest, cost effective and efficient English speaking Spanish solicitor, to help you with your property conveyance matters, (or with any other legal dispute problem), make sure you bookmark this page, visit our websites: www.ricorabogados.com and www.englishsolicitorinspain.com
or alternatively, please do not hesitate to contact us by e-mail at ricorsolicitors@yahoo.co.uk
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Thank you very much for your kind attention and we look forward to helping you!
Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practicing Spanish Solicitor Nº1247
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