What happens when the owner of a property lacks legal capacity to sell? The situation arises when a person has dementia and is unable to sign the deed of sale. In Spain the representative requires judicial authority to sell the property of a person without legal capacity. British citizens who lack capacity in the UK can be represented by their legal deputy in Spain. This means it may well be possible for the representative to sell the property in order to release funds.
Incapacity in Spain
The Law of Voluntary Jurisdiction, Law 15/2015, of 2nd July, governs incapacity proceedings. When the medical evidence is conclusive the judge will make an order declaring incapacity. The judge will appoint a guardian ( curador ) to represent the person and to handle their affairs. The Civil Code, as amended by Law 8/2021, regulates the obligations and the restrictions on the guardian´s authority. CC article 287.2 provides that the guardian must obtain authority from a judge in order to sell immoveable property.
The Law of Voluntary Jurisdiction, Law 15/2015, sets out the procedure under articles 62 to 66. The applicant files the case in the Court of First Instance in the area of the domicile of the person with incapacity. The application must set out reason for the proposed sale and show how the person with incapacity will benefit. It must describe the use of the sale proceeds. An expert report should be provided showing the market value of the property.
The state lawyer ( Ministerio Fiscal ) will be a party to proceedings in order to safeguard the interests of the person with incapacity. The judge weighs up the evidence and makes an order either approving or rejecting the application. If he approves it the judge has may order such measures as are necessary to ensure the correct use of the funds.
Incapacity in Britain
There are many elderly British citizens living in the UK who own properties in Spain. When such a person loses mental faculties the UK legal framework on incapacity applies. Spanish law recognises declarations of incapacity in other jurisdictions, subject to constitutional safeguards. Therefore a deputy appointed by the English Court of Protection may have authority to sell the Spanish property. In practice the deputy is likely to grant a power of attorney to a Spanish lawyer to perform the task.
It is a complex field and deputies should take advice in Spain about the formalities that need to be complied with. Both the Order from the Court of Protection and the POA need to have specific wording in order to comply with the rules. It is likely that the Spanish notary will want to see an apostilled Order of the Court of Protection. In Scotland a power of attorney is registered with the Office of the Public Guardian rather than by application to the Court. As a result the Spanish notary may require additional safeguards, such as a certifcate of Scottish law, to prove that the attorney has the necessary legal powers to sell the property.
Conclusion
When the owner of Spanish property has incapacity there are additional procedures. The documents for sale are likely to take longer to prepare. Respresentatives of those with incapacity should obtain specialist advice about the contents of the Order and or the power of attorney. It is necessary to satisfy the Spanish notary and land registrar that the representative has the necessary legal authority to sell.
Selling a Spanish property when the owner lacks mental capacity
Sale and Incapacity
What happens when the owner of a property lacks legal capacity to sell? The situation arises when a person has dementia and is unable to sign the deed of sale. In Spain the representative requires judicial authority to sell the property of a person without legal capacity. British citizens who lack capacity in the UK can be represented by their legal deputy in Spain. This means it may well be possible for the representative to sell the property in order to release funds.
Incapacity in Spain
The Law of Voluntary Jurisdiction, Law 15/2015, of 2nd July, governs incapacity proceedings. When the medical evidence is conclusive the judge will make an order declaring incapacity. The judge will appoint a guardian ( curador ) to represent the person and to handle their affairs. The Civil Code, as amended by Law 8/2021, regulates the obligations and the restrictions on the guardian´s authority. CC article 287.2 provides that the guardian must obtain authority from a judge in order to sell immoveable property.
The Law of Voluntary Jurisdiction, Law 15/2015, sets out the procedure under articles 62 to 66. The applicant files the case in the Court of First Instance in the area of the domicile of the person with incapacity. The application must set out reason for the proposed sale and show how the person with incapacity will benefit. It must describe the use of the sale proceeds. An expert report should be provided showing the market value of the property.
The state lawyer ( Ministerio Fiscal ) will be a party to proceedings in order to safeguard the interests of the person with incapacity. The judge weighs up the evidence and makes an order either approving or rejecting the application. If he approves it the judge has may order such measures as are necessary to ensure the correct use of the funds.
Incapacity in Britain
There are many elderly British citizens living in the UK who own properties in Spain. When such a person loses mental faculties the UK legal framework on incapacity applies. Spanish law recognises declarations of incapacity in other jurisdictions, subject to constitutional safeguards. Therefore a deputy appointed by the English Court of Protection may have authority to sell the Spanish property. In practice the deputy is likely to grant a power of attorney to a Spanish lawyer to perform the task.
It is a complex field and deputies should take advice in Spain about the formalities that need to be complied with. Both the Order from the Court of Protection and the POA need to have specific wording in order to comply with the rules. It is likely that the Spanish notary will want to see an apostilled Order of the Court of Protection. In Scotland a power of attorney is registered with the Office of the Public Guardian rather than by application to the Court. As a result the Spanish notary may require additional safeguards, such as a certifcate of Scottish law, to prove that the attorney has the necessary legal powers to sell the property.
Conclusion
When the owner of Spanish property has incapacity there are additional procedures. The documents for sale are likely to take longer to prepare. Respresentatives of those with incapacity should obtain specialist advice about the contents of the Order and or the power of attorney. It is necessary to satisfy the Spanish notary and land registrar that the representative has the necessary legal authority to sell.
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