Legal due diligence when buying in Spain: the checks that protect you

Most of the money in a Costa del Sol purchase is spent in a single hour at the notary. Most of the mistakes are made in the weeks before it, when nobody looks hard enough at the paper. This guide sets out the legal checks a buyer-side advisor and a Spanish abogado run before you commit, and again before you sign the deed.

Why the paper comes first

A property on the Costa del Sol can be well presented and still be a problem. The problem is rarely visible on a viewing. It sits in the Land Registry, in the community minutes, in a planning file at the town hall, in a mismatch between what the Catastro records and what you are actually buying. Legal due diligence is the process of pulling those documents, reading them against each other, and confirming that the person selling can sell, that what they are selling is what it appears to be, and that nothing attached to it becomes yours the day you own it.

There are two moments where this matters. The first is before the arras, the private deposit contract that ties both parties and usually costs you ten percent if you walk. The second is before the escritura, the notarial deed of sale. A good advisor does the core checks before the arras, because a deposit contract signed on a property that cannot pass clean title is money you may not get back easily. The notary performs certain checks at signing, but the notary is not your lawyer, and the notary's role is not to negotiate on your behalf or to tell you the building is overpriced.

The notary confirms the deed is lawful. Only your own advisor confirms the deal is sound.

The nota simple: the first document to demand

The nota simple informativa is an extract of what the Land Registry currently records about a property. It is the first document any buyer should ask for, and it should be recent. It tells you who the registered owner is, how the property is described, and what charges (cargas) sit against it.

What it shows

The nota simple lists the current owner, the registry description of the property, and every charge recorded against it: mortgages (hipotecas), embargoes (embargos, recorded as anotaciones preventivas de embargo), easements, resolutory conditions, tax liens (afecciones fiscales), prohibitions on disposal, and rights of use or usufruct. If the seller is not the registered owner, or if there is a mortgage still live, or an embargo from an unpaid debt, you learn it here before you have committed a euro.

Informative, not authenticating

One point of precision. Under Article 222 of the Ley Hipotecaria (Decreto de 8 de febrero de 1946), the nota simple is purely informative. It does not authenticate the entries; only a certificacion registral does that, issued and signed by the registrar. This does not make the nota simple weak, the registrar remains liable for errors or omissions, but where a transaction is high value or contested, your lawyer may request the fuller certificacion. For most purchases, a current nota simple read carefully is the working document.

• Confirm the seller named on the nota simple is the seller signing the contract.
• Confirm no live mortgage, or agree in writing how an existing one is cancelled at completion.
• Read the charges section line by line: embargoes and afecciones fiscales are easy to miss.
• Take the nota simple close to signing, not months old, so it reflects the current state.

The community of owners: debts, rules and planned levies

If the property is a flat, a townhouse, or any unit inside a shared development, it belongs to a comunidad de propietarios governed by the Ley 49/1960 sobre Propiedad Horizontal. Three things need checking: outstanding debts, the community rules, and any levy already voted.

The certificate of debts

Under Article 9.1.e) of the Ley de Propiedad Horizontal, at the deed of transfer the seller must declare being up to date with general community expenses, or state exactly what is owed, and must produce a certificate on the state of debts that matches that declaration. Without this certificate the notary cannot authorise the deed, unless you as buyer expressly waive it. Do not waive it. The reason is direct: the buyer of a unit is liable, up to a real limit against the property (afeccion real), for the community debts of the current year and the three prior annualities. An unpaid balance the seller leaves behind can become your bill. The community secretary, with the president's approval, must issue the certificate within a maximum of seven calendar days of the request.

The rules and the minutes

Beyond debts, read the community statutes and the recent minutes (actas). The statutes may restrict short-term letting, pets, or exterior changes. The minutes tell you whether a major levy (derrama) has already been approved for a new lift, a roof, or a facade, because a levy voted before you buy can still land on you after. On the Costa del Sol, where many developments are ageing and pools and lifts are expensive to renew, this is not a formality.

First occupation: now a declaracion responsable in Andalucia

For a new building, or one that has been substantially changed, you need proof it may lawfully be occupied. The instrument has changed name in Andalucia, and it matters that your advisor uses the current one.

The traditional licencia de primera ocupacion, or licencia de ocupacion o utilizacion, has been replaced in Andalucia by a declaracion responsable de ocupacion o utilizacion. The regime was first introduced by Decreto-ley 2/2020 and is now governed by the Ley 7/2021 (LISTA) and its regulation, Decreto 550/2022 (RGLISTA). First occupation of a completed new building requires a declaracion responsable, which is effective from the moment it is presented, for the purposes of use, mortgage and sale, while the municipality retains the power to review and verify it (comprobacion). The documentation required is essentially what the old licence needed: the final work certificate, final plans and memoria, the energy certificate, installation certificates, and proof that fees are paid.

A render is a promise. A declaracion responsable, correctly presented and documented, is proof the building may lawfully be lived in.

Planning legality and AFO: the rural landmine

This is where Costa del Sol buyers, particularly of country villas, fincas and older builds, are most exposed. A property can be standing, registered, connected to services, and still not be a fully legal building. The relevant status is AFO.

What AFO actually means

Asimilado a fuera de ordenacion (AFO) is regulated in Articles 173 and 174 of the LISTA (Ley 7/2021) and developed by Decreto 550/2022. It applies to buildings finished without a licence, or contrary to one, against which the administration can no longer bring a legality-restoration action (accion de restablecimiento) because the time limit has expired. LISTA broadened AFO to all classes of soil and all uses, residential, tourist and industrial.

The point buyers must understand: an AFO declaration is not a legalisation of the building. It recognises a de facto situation. It allows access to basic services, registration in the Land Registry, and conservation or certain rehabilitation works, but it does not turn an irregular building into a fully lawful one, and it does not licence extension. If a country property is offered on the coast, your advisor should check its AFO status and pull the municipal urban certificate before you go near a deposit.

• Ask directly whether the building has a first-occupation instrument or an AFO declaration.
• Request the municipal certificado urbanistico to confirm the planning classification of the land.
• Treat any pool, guest house or terrace added over the years as a separate legality question.
• Remember AFO permits conservation, not enlargement: plans to extend may not be grantable.

The energy performance certificate

The certificado de eficiencia energetica is a legal requirement at sale, not an optional extra. Under Article 17.2 of the Real Decreto 390/2021, when an existing building or part is sold, a copy of the duly registered energy efficiency certificate and the energy label must be attached to the contract. Certification is mandatory for new buildings, for existing buildings or parts that are sold or rented, and for buildings over 250 square metres occupied by public administrations. The energy label must also appear in any property advertisement.

Note the 2026 position: RD 390/2021 was amended by Real Decreto 659/2025, de 22 de julio, which updated the certification procedure and transposed EU rules. The certificate is a small document, but its absence at signing is a real defect, and its rating carries a cost signal on an older Costa del Sol property that may need work to run efficiently.

The Catastro match: is this the property you think it is

Two public records describe every Spanish property: the Land Registry and the Catastro. They should agree. Where they do not, you need to know before you buy, because surface, boundaries and even the identity of the plot can be in question.

The referencia catastral is the unique alphanumeric code that identifies and geolocates each property. The notary must include it in the deed, and the parties must confirm the property matches the cadastral description. Since the reform by Ley 13/2015, which amended the Ley Hipotecaria and the consolidated Ley del Catastro Inmobiliario, there is a coordination system between the Land Registry and the Catastro built on georeferenced graphic representation (representacion grafica georreferenciada). Where the two diverge, the discrepancy is resolved through the coordination and subsanacion procedures. Before signing, verify surface, boundaries and cadastral reference against both the nota simple and the Catastro. On rural plots especially, a boundary that does not match the ground is a common and expensive surprise.

IBI, utilities and the tax base

Two separate issues sit under this heading. First, arrears you could inherit. Second, the figure the tax authority uses to tax the purchase.

Arrears that can follow the property

Confirm the IBI (Impuesto sobre Bienes Inmuebles, the annual local property tax under the Texto Refundido de la Ley Reguladora de las Haciendas Locales, RD Legislativo 2/2004) is paid and current, and that utilities and community fees are up to date. The property carries a real charge (afeccion real) for unpaid IBI of the current and prior tax years, so an unpaid bill attaches to the property, not just to the departed seller.

The valor de referencia drives the tax

Since Ley 11/2021, the anti-fraud law, amended Article 10 of the consolidated Ley ITP-AJD, the taxable base of transfer tax on real estate is the Catastro valor de referencia, unless the declared price is higher, in which case the higher figure applies. The valor de referencia was upheld as constitutional by the Tribunal Constitucional in STC 13/2026, de 12 de febrero de 2026, which dismissed the challenge and confirmed it as the taxable base for ITP, AJD, inheritance and gift tax and wealth tax, while leaving open the right to contest the value in an individual case. In plain terms: you can agree a lower price with a seller, but you may still be taxed on the reference value, so check that value before you model your costs.

Buying through a company, and the non-resident withholding

Whether you buy personally or through a company, the same transfer taxes apply. Resale property in Andalucia pays ITP; new-build pays 10 percent IVA plus 1.2 percent AJD. A company can only deduct the IVA if the property is used in a VAT-taxable activity. For a home you will use yourself, buying personally generates no IRPF income, whereas holding through a patrimonial company means charging a market rent to the shareholder, taxed at 25 percent corporate tax. Buying through a company is generally advised only for large estates, and only after tax advice specific to your position.

The Andalucia transfer tax at a glance

Rates below are set by Ley 5/2021 de Tributos Cedidos de la Comunidad Autonoma de Andalucia, current for 2026. The base is the higher of the price or the Catastro valor de referencia. Confirm which band applies to your own circumstances before you rely on any figure.

The non-resident 3 percent withholding

This one catches buyers who do not expect to be the tax collector. When the seller is a non-resident individual without a permanent establishment in Spain, the buyer must withhold 3 percent of the agreed price and pay it to the AEAT via Modelo 211, within one month of the transfer, as a payment on account of the seller's tax under the Impuesto sobre la Renta de no Residentes. It is not required if the seller proves Spanish tax residence or taxation under Corporate Tax. If you fail to withhold, the liability can fall on you. Your advisor should confirm the seller's residence status early, because it changes what you must do at completion. Where the seller is a non-resident, the gain itself is taxed under the IRNR at a flat 19 percent for residents of the EU, Iceland and Norway, and the 3 percent withheld is a payment on account of that liability, refundable if it exceeds the final tax due.

If your seller is a non-resident, part of the price is not the seller's to take. Three percent of it belongs to the tax office, and it is your job to send it.

What changed for 2026

Several rules that older guides still repeat are no longer accurate. Four are worth knowing before you buy.

• Golden Visa abolished. The residence visa for real-estate investors under Articles 63 to 67 of Ley 14/2013 was repealed by Ley Organica 1/2025, de 2 de enero, with effect from 3 April 2025. Buying property in Spain no longer grants residency. Applications filed before that date follow the prior rules, and existing Golden Visas remain valid and renewable under transitional provisions.
• Short-term-rental national registry struck down. RD 1312/2024 created a mandatory single rental registry with a Numero de Registro required in listings from 1 July 2025. The Tribunal Supremo, in Sentencia 620/2026 de 19 de mayo de 2026, annulled the national single-registry procedure for lack of State competence over registers that overlap the regional ones. On the Costa del Sol, verify the Andalusian VFT tourism registration, not the annulled national number.
• Plusvalia municipal in force. The municipal capital-gains tax on urban land (IIVTNU), paid by the seller, was rebuilt by RD-ley 26/2021 after the Tribunal Constitucional annulled the old method in STC 182/2021. Two methods now co-exist, objective and real, no tax is due where there is no real gain, and the reform was upheld against constitutional challenge by STC 17/2023.
• Solidarity tax now effectively permanent. The Impuesto Temporal de Solidaridad de las Grandes Fortunas, on net wealth over 3,000,000 EUR with a 700,000 EUR exempt minimum for residents, was extended indefinitely by RD-ley 8/2023 and is filed via Modelo 718. Following a TEAC resolution of 18 December 2025, non-residents taxed by obligacion real may now apply the 60 percent combined-tax limit previously restricted to residents.

The sequence, and who does what

The checks above are not a menu. They run in an order, and the order protects your money.

1. 1Pull a current nota simple and confirm owner and charges before any commitment.
2. 2Run the core due diligence: community debts and rules, first-occupation or AFO status, Catastro match, IBI and utilities, energy certificate.
3. 3Sign the arras only once that first pass is clean, with the deposit contract drafted to your protection.
4. 4Complete the remaining checks and clear any conditions before the escritura.
5. 5At the notary, sign the deed, settle taxes on the correct base, and handle the 3 percent withholding if the seller is non-resident.

Engage a Spanish abogado. The figures and deadlines here are drawn from the current law, but municipal practice varies, tax bands depend on your circumstances, and the AFO and first-occupation regimes are technical. An advisor working for you, not for the sale, is the difference between reading these documents and understanding what they mean for you.