What should I consider if I buy a used house from a company or a bank?
Aspects such as ensuring that the seller is a representative of the company or knowing what taxes it is necessary to pay
Source: www.idealista.com
Although home sales have slowed in recent months, due to the new mortgage law and the economic slowdown, the last quarter of the year is usually a good period to buy a home. And if you buy a flat from a company it is important that you consider aspects, such as making sure that the seller is a representative of the company or knowing what taxes you have to pay.
The Law Attic Law Firm details the key aspects below:
Check that the seller is the company representative
The Law attributes the representation of the company to the administrator based on how it is determined in the bylaws. But the company can also grant powers of representation to people with the consideration of distressed.
The advice offered by the law firm is that before the signing of the private sale contract, the buyer reviews the bylaws of the company, the deed of appointment of an administrator or the proxy, to verify that the company is validly represented. A note may also be requested from the commercial register to verify that the administrator continues to hold his position.
Check that there is agreement of the partners to sell the flat
Para vender una vivienda considerada activo esencial es necesario que los socios lo hayan acordado en junta general. Tiene tal consideración la vivienda cuyo importe supere el 25% del valor de los activos que figuren en el último balance aprobado por la mercantil, una exigencia que se introdujo en la Ley de Sociedades de Capital, tras la reforma del año 2014. Además, al margen del valor cuantitativo y aunque el valor no supere el 25% del total de bienes de la sociedad, el inmueble puede tener la consideración de activo esencial para poder venderse.
Legal Attic recommends that before signing the information is requested from the company or that the seller is requested a certificate stating that the property to be transmitted is not an essential asset.
Delivery to the company
The signing of a private contract of sale with delivery of money as a penitentiary deposit is a frequent formula, although it does not guarantee the buyer that the operation is carried out. The selling company may sell the flat to another person, but, in return, it must return the purchase delivered to the buyer in duplicate. In the event that the company does not deliver them in duplicate and declared insolvent, the buyer could lose the floor and money, having to claim the return of the amounts delivered to an insolvent company.
Legal Attic points out that it is possible to avoid this risk, by formalizing directly the sale before a notary. If such an option is not possible, the buyer can find out in the commercial register if the company that sells is solvent or has other assets. It would also be possible to sign the private contract by depositing a check for the amount of the deposit, at the notary where the deed is planned.
The act of real ownership of the selling company
This means that those partners with more than 25% participation in the selling company must identify themselves to formalize the sale. Companies created after the year 2010 in which the Law on the Prevention of Money Laundering came into force, already incorporate in their articles of incorporation the act of real ownership. If the selling company is prior, it will be necessary to have the minutes to be formalized before a notary. Said act of real ownership is easily obtained in notary.
Taxes to pay
First, the tax to be paid by the buyer for the purchase of the house is VAT of 10% in case the house is new (and 4% if the house is officially protected by special regime or public promotion) . And if what you buy is a business premises or a new office, the VAT rate is 21%.
But if it is second-hand, the transfer will be exempt from VAT and then you must pay the Property Transfer Tax (TPO).
Of course, if the one who buys is an entrepreneur or professional in the exercise of his activity, and is entitled to the total or partial deduction of VAT, it is possible to waive the exemption from this tax. This will ensure that the purchase is taxed by VAT instead of TPO, and in this way the tax paid can then be deducted, as Legal Attic remembers. In the event that the buyer has to pay VAT, he will be in charge of entering it into the Treasury, that is, it will not be the seller (for what is known as the “investment of the taxpayer”, referred to in article 84.1.2.e of Law 37/1992).
If the buyer had the right to deduct the VAT, in the declaration that he presents he will enter the VAT of the purchase on the one hand, and on the other hand he will deduct it, obtaining thus the neutrality of the tax, as they remember from Legal Attic.