Selling a property in Spain through a power of attorney

If you live in another country or cannot travel to sign, you can organise the sale of a property in Spain through a notarial power of attorney with sufficient faculties.

The preparation must cover the whole transaction: which documents your representative may sign, which conditions must be respected, how the price will be received and who will deal with the subsequent steps.

At MH Legal & Seguros we explain what to review before granting a power to sell a property in Spain.

Can the sale be completed without attending the notary in person?

Representation through a power allows another person to take part in certain legal acts in the owner’s name.

The Consejo General del Notariado describes a power as a public deed authorised by a notary which allows one person to appoint another as representative to act in their name in determined legal acts, and states that the representative must evidence that capacity by exhibiting the copia autorizada of the power.

The Spanish consular office in Frankfurt, when setting out the powers it handles, includes the special power for one or several specific acts and expressly lists the sale (compraventa) among them.

This may spare you from attending certain signings. The steps that will require your involvement must still be checked, along with the documents the notary, the bank and the other participants will request.

The power must expressly allow the sale

It is not enough to check that the document is titled “general power”.

Article 1713 of the Spanish Civil Code separates acts of administration from acts of disposal: a mandate conceived in general terms covers only the former, and to compromise, dispose of, mortgage or carry out any other act of strict ownership an express mandate is required.

Before using an existing power, check whether it allows a sale and whether its limits are compatible with the transaction.

Its validity must also be checked. Send the document for review before committing to a final signing date.

Which faculties to review in a power to sell

The wording must start from the steps envisaged.

Faculties should not all be added by default. Select the ones needed and review how the limits will be reflected.

If the sale is documented in several deeds or the transaction changes, check that the power still covers each step before signing.

Price, arras and conditions: what to pin down

Before preparing the draft, provide:

• The agreed price or the conditions for negotiating it.
• Amounts already received.
• The content of existing reservations or contracts.
• The intended date of transfer.
• Conditions still to be fulfilled.
• The occupancy situation of the property.
• Furniture or other items included.

Decide which limits must appear in the power itself and which will be documented as instructions of the engagement. A private instruction to the representative must not be confused with a limitation contained in the representation document.

If a relevant condition changes, review its effect before authorising the signing.

How to organise receipt of the price

This point deserves specific preparation.

It helps to distinguish:

• The faculty to sign the sale.
• The faculty to receive the price.
• The possibility of declaring that an amount has already been received.
• The steps needed to pay in or manage the funds.

Prepare a payment schedule identifying:

• Total price.
• Amounts paid in advance.
• Amount outstanding.
• Recipients of each payment.
• Accounts and means of payment envisaged.
• Amounts set aside for charges, costs or taxes.

Granting a power to sell does not mean the price must be paid into the attorney’s account. The way the price is received must be organised expressly and coordinated with the parties.

If cheques or transfers to a foreign account will be used, confirm beforehand how they work and which documents are needed.

What if the property has a mortgage?

The sale and the steps to cancel the financing must be coordinated from the outset.

Disclose the outstanding debt and ask for these points to be determined:

• Which documents the creditor will provide.
• How payment of the debt will be organised.
• Who will prepare the cancellation at the Land Registry.
• Which provisions or withholdings are envisaged.
• Which steps your representative may carry out.

Do not assume that a power to sell covers any step relating to loans, guarantees or cancellations.

The aim is for the content of the power and the organisation of the transaction to be consistent.

With several owners, review each one’s representation

Identify who must take part and in what capacity.

Where there are several owners, it should not be presumed that one person’s power allows them to represent the others. Their shares and the faculties provided by each person must be reviewed.

If there is a usufruct, a pending inheritance, a company that owns the property or relevant matrimonial circumstances, say so before drafting.

Possible conflicts should also be reviewed where the same person is to take part in more than one position within the transaction.

How to grant the power from abroad

Granting it before a Spanish consular office with notarial functions, or before a foreign notary, can both be considered.

The requirements must be checked according to the route and the country. The Spanish Consulate in Frankfurt, for example, requires a draft describing the faculties and publishes approved models, including one for a sale, which allow the details to be completed and faculties added or removed.

If you use a foreign notary, the Ministry of Foreign Affairs provides for the legalisation or apostille and the official translation that apply for use in Spain.

Coordinate the draft before signing it

Give the wording to those preparing the sale in Spain before the power is granted.

That is how the faculties can be reviewed and the documents, translation and delivery organised.

The apostille certifies the authenticity of the public document within the applicable convention. It does not replace the review of the scope of the faculties.

Which document must reach the notary

A photograph or a scanned file may serve to review the wording, but it should not be treated as sufficient to formalise the sale.

The Spanish notarial profession states that the attorney must evidence that capacity by exhibiting the copia autorizada of the power, and provides for its electronic transmission between notaries by recognised electronic signature.

In the deed, the authorising notary inserts an identifying reference to the document evidencing the representation and issues a judgement of sufficiency on the faculties, which includes examining the existence, validity and current force of the power.

Confirm which document is needed and how it will be available before fixing the signing.

A sale by power does not replace the tax review

The power organises representation. Separately, it must be determined who will review and meet the tax obligations of the transaction.

If you are a non-resident, disclose that when preparing the sale and coordinate the analysis of the withholdings, returns and municipal steps that may apply.

The engagement must make clear who will carry out each step and which receipts will be provided to you.

What to review when the transaction ends

After signing, ask for:

• The documents of the sale.
• The receipts for payments and amounts received.
• The detail of provisions and costs.
• The tax returns covered by the engagement.
• Information on outstanding steps.

Also consider whether you wish to keep the power.

As a general rule, the principal may revoke it. The formalities, the notifications and the return of the copia autorizada must be organised; changing professional does not by itself complete those steps.

Frequently asked questions

Can I use the power I used to buy the property?

It must be reviewed. Faculties to buy do not allow one to presume that faculties to sell also exist.

Can the attorney change the price?

It depends on the faculties, the limits and the instructions that apply. Settle this question before granting the power.

Must the price be received in Spain?

The form and destination of the payment must be coordinated with the parties and the banks. It is not determined simply because the sale is made through a representative.

Can I limit the power to one property?

Wording limited to the transaction can be considered. Provide the details of the property and explain which steps you need to delegate.

Will an apostilled foreign power always be sufficient?

That cannot be concluded from the apostille alone. The content and the other applicable requirements must be checked.

Prepare the representation before committing to the signing

Selling through a notarial power requires coordinating the faculties, the contracts, receipt of the price and the subsequent steps.

Preparing in advance allows needs to be identified before the representative takes on commitments in your name.

At MH Legal & Seguros we advise international clients on property sales in Spain and coordinate the preparation of powers with the notaries and professionals involved.

Contact our team to organise the sale of your property in Spain through a power of attorney.