The general rule is that housing purchase agreements are concluded in a notarial deed, which is a public document authorised by a notary, who writes down the wishes of the parties, confirm their identity and legal capacity, draws up the document according to the parties’ instructions or written draft, making sure it fits the legal requirements, and cautions the parties about the their obligations as a result of making the agreement.
Having the notary do this will give the document’s contents authenticity, which means that whatever the buyer, the seller and lending bank, if any, declare to the notary will be set down in the deed, and the deed will serve as proof to all that the sale took place and on that date, and neither of the parties can deny to the other that he or she made the statements recorded in the deed.
Notarisation of the deed is equivalent to delivery of the house or property, and generally the money is handed over to the seller in the notary’s presence. That is why, before authorising the deed, the notary will ask the property registrar for an uncertified note attesting to the ownership of and burdens on the property, and immediately after the deed is signed, if the parties so request, the notary will forward a message to the Property Registry stating that the deed has been authorised, thus preventing -now that the agreement has been concluded- the buyer from being affected by any injunctions or burdens aimed at the seller that reach the Registry before the deed of sale does.
It is important for you to know that the choice of the notary is supposed to be made by the person who is going to pay the notary’s fees. If the seller is a business owner and the agreement is concluded in the form of a standard contract (as when you buy from a promoter or you arrange for a mortgage loan), the buyer gets to choose the notary.
Lastly, we must point out that no matter whether the agreement is private or public (notarised), the seller is responsible for all hidden or latent defects in the home, even if he or she is not aware of them. If any such defects exist, you as the buyer can opt out of the agreement and receive payment for your expenses, or you can get a proportional discount off the price, set by an expert. In addition, the promoter, the builder and the chief engineer for the building are severally liable to buyers and purchasing third parties for damage caused by structural defects in construction (liability good for ten years), damage stemming from defects that affect the inhabitability of the building (liability good for three years), and damage caused by defects in finishing work (liability good for one year). They are also obliged to take the proper insurance policies.