Most publications advise international buyers and vendors to instruct an independent solicitor, especially in Marbella and the rest of the Costa del Sol. This article sets out the key reasons behind this standard advice.
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What makes a solicitor independent?
This article would be of no use if it did not clarify what makes a solicitor “independent”. A solicitor is not independent when he protects (either directly or indirectly) the interests of any persons other than his client. A straightforward example would be when he represents the buyer and the seller in the same transaction. However, readers are advised that there are more subtle situations which would put the lawyer´s independence into question. The following are typical examples, which are unfortunately common in Marbella and across the Costa del Sol:
- A solicitor is employed “in-house” with the real estate agent or developer. Believe or not, some estate agents have the audacity to state that their in-house lawyer is “independent””!
- A solicitor is “recommended” by a real estate agent or developer because “he is good at closing deals” (instead of protecting his client interests above those of any other party).
- A solicitor has a joint practice, office or exhibition stand with an estate agent or a developer, or otherwise appears in their website and marketing material.
Please note that it is not decisive if the solicitor is employed by the estate agent or developer (or if he pays or receives a referral fee). For example, a solicitor will not be fully interdependent if he gets a stream of referrals from an estate agent or developer, because his main concern would be to close the deal instead of protecting his client´s interests at all costs.
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Why should you instruct an independent Solicitor?
The above examples should not be construed as implying that most estate agents and developers on the Costa del Sol are crooks or act in bad faith. There are many reputable agents and developers. However, readers should appreciate that their interests can come into conflict with those of the buyer or the seller (and unfortunately, in some cases, there have been instances of fraud).
The main concern for the agent or developer is to close the deal, whilst the main interest for the buyer is to ensure that all risks and issues are disclosed beforehand (and to be able to walk away from a bad deal or ask for a discount if issues are revealed).
On the other hand, a solicitor who is fully independent will be the only party in a transaction whose interests are 100% aligned with those of his client.
- When acting for buyers:
An independent solicitor would be solely focused on mitigating risks and protecting his client´s position, especially before paying a deposit and completing the purchase.
In addition, he may discover liabilities and charges during the initial legal due diligence phase, allowing his client to renegotiate a discounted purchase price or to walk away from a bad deal.
- When acting for vendors:
An independent solicitor will be able to give an adequate estimate of all applicable taxes (and retentions if his client is not tax-domiciled in Spain). Moreover, unlike a solicitor appointed by the buyer´s agent, he will be able to negotiate better conditions and close the deal in a manner that prevents the buyer from walking away at the last minute.
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Additional advantages
In addition to the above, instructing an independent solicitor would result in the following advantages:
- Only an independent solicitor will be capable of becoming your long term advisor. It is hard to imagine how a solicitor who is not fully independent can ever inspire trust from his clients. This is a particular concern for international clients, as they will need assistance in the long term (even after they sold their property in Spain).
- International clients will be mitigating the numerous risks associated with purchasing or selling property abroad.
In our opinion, instructing a lawyer who is not independent is not only a waste of money, but could result in far worse situation for the client, because he will have a false sense of security.
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Why BF Solicitors?
Needless to say, we are fully independent solicitors on the Costa del Sol. Unlike many other law firms in the region, we do not work for or in close association with sellers, developers or estate agents.
If we perceive that there is a conflict of interest (for example, if we acted for the vendor in the past), we will inform our clients accordingly and, where appropriate, refuse to act.
In addition, we are one of the few law firms in Spain with a partnership composed of English Solicitors (registered with the Law Society of England & Wales) and Spanish Lawyers (registered with the local and national bar associations). Therefore, we are proud of adhering to the highest level of professional standards applicable to lawyers in Spain and beyond.
About us & the author:
Lucas Bornico is a Partner at BF Solicitors (Bornico, Farquharson & Associates).
Unlike many Spanish lawyers who incorrectly claim to be “Solicitors”, he is a real Solicitor, in the sense that he is member of the Law Society of England & Wales (in addition to being registered in Spain as an EU lawyer with the Spanish & Malaga Bar Associations).
Together with our team of Spanish lawyers, he has considerable experience in advising international sellers and buyers across the Costa del Sol including Benalmadena, Fuengirola, La Cala de Mijas, Elviria, Marbella, San Pedro, Estepona, Manilva and La Duquesa. We also advise in regards to conveyances in surrounding areas, such as Sotogrande, Guadiaro, Casares, Benhavis, Alhaurin, Malaga and Nerja.
Disclaimer
This article is intended to provide a general overview and should not be deemed to constitute legal advice. Before relying on this article and entering into a transaction, readers are strongly advised to contact BF Solicitors for a free and confidential consultation.
