How to ensure payment in a real estate purchase?

How can I guarantee that I will receive the price of the sale of a property?

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Payment before the execution of the public deed of sale

When the price is satisfied prior to the granting of the public deed of sale -for example, in the case of contracts of sale instrumented in private document- the limitations imposed by the Law must be taken into account 7/2012 of 29 October, that prevents paying an amount in cash or bearer check for an amount greater than 2.500 € when any of the parties is an entrepreneur or professional acting in the exercise of their functions. Otherwise, the limit for the payment of amounts in cash or bearer checks will be 100.000,00 €, having to fill in the S-1 model in case that amount is exceeded.

Por lo anterior, it is preferable that the payment be instrumented by a nominal bank check issued by the financial institution of the buyer, and that guarantees the collection of the same. Payment can also be made by bank transfer. In any case, the fundamental thing is that the buyer keep a copy of the instrument that reflects the payment-copy of the nominal check, of the transfer receipt, or did I get the cash-, because when raising the contract to public deed it will be necessary to justify the amounts paid on account.

Payment at the time of granting the public deed of sale

The same principles referred to in the event of payment before the execution of the public deed of sale apply to cases in which, for reasons of convenience, it is decided to pay the payment at the time the deed is granted. In any case, must remember that, in case of payment by bank check, the current account number against which the check is released must be provided, insofar as the one that appears on the check will not be that of the buyer, but that of the corresponding bank.

Within this payment method, it is also possible that, acquiring the property by means of a loan granted by a bank, it is the one that appears together with the buyer in the notary in order to grant the deed of the loan with a mortgage guarantee and deliver the check directly to the seller for the amount of the sale, charged to the buyer's loan account.

Payment after granting the public deed of sale: pago aplazado

In addition to the cases in which the purchase price is paid before or during the granting of the public deed of sale, The assumptions in which said payment occurs after the granting of the public deed are also common., namely, after the tradition of the property occurs and, thereby, that the buyer acquires the property on it. This "partial consummation" that would occur in the sales contract in these types of cases places the seller in a more unprotected situation, that is detached from the thing sold before receiving the price of it. To balance the positions of both parties, different guarantees of payment of the price are usually established, which are what we will study next.

Personal price guarantees

Personal guarantees subject other persons than the buyer to fulfill the obligation to pay the purchase price.. These guarantees are the deposit and the guarantee.

Although both figures are often confused with each other in practice, it is important to distinguish one from the other. So, the bond is a figure belonging to Civil Law, and is regulated in the articles 1822 and following of the Civil Code; the endorsement, meanwhile, corresponds to the field of Commercial Law, and he is an atypical figure, beyond the regulation of the exchange guarantee provided in the Law 19/1985, of 16 July, Exchange and Checks.

The fundamental difference between the bond and the guarantee is that, while in the latter the guarantor responds in a debt solidarity regime, in the bond the guarantor responds only after exhausting the assets of the main debtor, Unless expressly stated in the surety agreement that the guarantor waives the benefits of excuse, order and division.

Actual price guarantee: constitution of mortgage

The mortgage, as a real guarantee right, allows the seller to chase the thing sold, even if it is not in your estate for having already transmitted it, conferring the right to realize the value of the mortgaged property in the event that the debtor does not pay the purchase price.

In this manner, although the property is the property of the buyer from its delivery, the seller can realize its value in case the seller breaches his obligation to pay the price. In cases where the deferred payment of the price is used in several installments, the difficulty of differentiating a specific default of the buyer - which is late in the payment of one of the installments- of an essential breach of its obligation to pay the price - which would determine the seller's right to do the good- implies that it is usual to include “early maturity” clauses.

The domain reservation agreement

In addition to personal and real guarantees strict sense, There are other types of guarantees that also protect the interest of the seller in the event that the buyer fails to meet his obligation to pay the price..

Is the case, for example, of the reservation of domain pact, which is that agreement in which the parties, protected by the principle of autonomy of the will, they state in the sales contract that the seller retains ownership of the thing sold until he has received the full price of the sale. So, the seller transmits only the possession of the good, being able to claim it from the buyer in the event that the buyer does not comply with his payment obligation. Unfolds, therefore, a suspensive efficacy of the effects of the sale.

Overall, it is a pact usually included in the sale of personal property, and less used in merchanting of real estate in which deferred payment, often, may take several years.

The express resolution condition

The express resolution condition is also an agreement reached by the parties under the principle of autonomy of the will, that they include in the contract and that allows the seller to settle the sale in the event that the buyer fails to meet his obligation to pay the price within the stipulated period. In the case of several deadlines, it usually incorporates, therefore, an early maturity agreement that allows determining when the obligation to pay the price is to be understood as breached.

In this case, the clause does not display a suspensive efficacy of the effects of the contract, rather, it determines the retroaction of these in the event of the agreed condition - breach of the obligation to pay the price.

In this type of agreement, it should be borne in mind that the resolutory condition itself supposes a taxable event of the Tax on Capital Transfers and Documented Legal Acts.

Also, in accordance with the provisions of the article 59 Mortgage Regulation, to re-register the property object of the contract in favor of the seller it will be necessary to notify the buyer judicially or notarially, stating that the sale is resolved, in addition to accompanying the seller's title. To cancel the registration of the resolution condition once the ownership of the property has been recovered, Article 175.6 requires documentary proof of the resolution of the sale and the return of the part of the price that would have been paid.

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