The role of the notary in Spain
To understand the role of the lawyer in Spain, you also need to understand the role of the notary.
The role of the notary in Spain is more akin to that of notaries in France, and corresponds to the Latin systems, which do not exist in most parts of the world.
In Spain, the notary is a public representative, i.e. a representative of the State who verifies the accuracy of the notarized deed performed in front of him: identity of the participants, capacity, ownership of the rights over which they are contracting, free exercise of each party’s rights… but he does not intervene on behalf of any of the parties, although he is obliged to advise the parties of their rights, but not in the context of a negotiation.
For these reasons, and because the notary’s function does not involve a thorough examination of the property’s situation in the context of each party’s commercial interests, a lawyer is needed who deals primarily with the property’s situation, because the notairy does not carry out an examination of the property as the notairy does in France or Belgium, and this makes the purchase much more time-consuming.
In the British system
We must start from the fact that in the field of legal relations between private individuals, the notion of a public deed is unknown; there is no authenticity or public faith, linked to the notarial deeds that we know. In this sense, it can be said that all deeds are private and that their effectiveness in court depends on proof by witnesses. Evidence is therefore essentially oral. If we consider property transfers, to find a point of reference, we generally call on the services of a solicitor, who is the English character who could most closely resemble the Latin notary, but who in reality, both in terms of his training and the nature of his intervention, is very different.
Although the solicitor is generally the expert who draws up the deed, he does not sign it or intervene in it, and therefore acts as a simple adviser or lawyer, but not as a notary.
He therefore acts on behalf of a client and is not, and this is another fundamental distinction with the notary, an “impartial adviser”. It is therefore normal, in sales transactions, for two solicitors to advise each of the parties. The buyer’s solicitor contacts the seller’s solicitor, examines the title deeds, checks whether there are any encumbrances, deals with any creditors and, together with the seller’s solicitor, draws up the contract.
And in the United States
In real estate matters, the intervention of a legal expert, lawyer or attorney-at-law who advises each party is normal, but it is not essential, and its intervention does not confer any effect on the document other than that arising from its quality due to the competence of its drafter, although the intervention of the lawyer is frequently replaced by that of specialised agents or banking institutions, which also happens in Spain, but with great risk for all parties as regards the legal effects of the document.
What is known in the United States as the notary public is more often a second or third profession of insurance agents, bank employees, shopkeepers, secretaries or accountants. He is not a lawyer, but a good man, whose moral integrity and impartiality are essential conditions, which distinguish him radically from lawyers and allow him to intervene and certify the production of certain deeds, such as the creation of companies.
Although the powers of notaries public vary from state to state, it can generally be said that their function in the United States is to attest, i.e. to act as witnesses certifying the authenticity of signatures, whether the signatories do so freely, or the identity of individuals.
The profession of lawyer in Spain
Lawyers are legal professionals who assist their clients in transactions and disputes.
The lawyer’s role is to provide legal advice to his or her clients, which may be required both in court and out of court.
The Spanish lawyer’s sphere of activity extends to several sectors from public to private law: criminal, civil, corporate, etc.
In the case of real estate purchases, the lawyer will be responsible for verifying that there are no charges on the property or unpaid debts that could later be fall on the buyer, verifying the urban situation of the property and the building where it is located, obtaining official documents from the registers and collecting them, and drafting the purchase contract in favor of his client.
Most lawyers’ fees are calculated on a percentage of the price of the property (1 to 2%), or in fixed tables from €2,000 per intervention. They base their fees on a percentage of the value of the property (between 1 and 2%). Fees can also vary depending on the complexity of the subject, and of course from one firm to another.
Our fees include the intervention of a lawyer who will ensure that your property complies with the circumstances set out by the purchaser.