Inmobiliario- Real Estate

As real estate specialists we know our clients' business and the market trends.

Real Estate Promotion and Building Renovation

Some of our clients are real estate developers focused on selling their properties to final buyers.

Others, usually individuals, are interested in promoting the construction of their own homes, using a housing cooperative.

The shortage of finalist land in the city centre of the main locations in Spain has resulted in local and international investment funds, “family offices” and some real estate investment trusts (locally named as SOCIMI´s) focussing their demands on the integral renovation or refurbishment of emblematic buildings, creating an exclusive product ideal for the investor´s appetite due to their high yield returns.

Different members of our Firm have made possible the integral renovation of “prime” buildings in different locations in the Iberian Peninsula, such as the renovation projects located in C/ Serrano nº7 in Madrid (Spain), C/ Linterna nº13 in Valencia (Spain), C/ Ballesteros nº4 (“Palacio de los Condes de Castillejo”) in Granada (Spain), Largo de San Carlos 11-16 in Chiado, Lisbon (Portugal), Rua do Quelhas 21-23 in Lapa, Lisbon (Portugal) and Rua Braamcamp 16-20 in Plaza Marqués de Pombal, Lisbon (Portugal).

HOW WE CAN HELP

Among other services, we highlight the following services as recurrent in any promotion or renovation project.

Agreements with clients and conveyancing of the terms with their legal advisors: reservation agreements, promissory agreements, options to purchase and private purchase agreements.
Coordination with real estate agencies for the formal identification of final buyers.
Final buyer´s assistance on the preparation of “Know your client” (KYC) questionnairesin order to comply with the prevention of money laundering rules in force.
Coordination with banks to obtain the guarantees to be delivered to final buyers in connection with payments made to the developer throughout the acquisition process.
Coordination with banks to facilitate the finance by mortgage subrogation to final buyers.
General advice to developers and individuals on the negotiation and signature of construction agreements as well as for the obtention of licence
Coordination with third parties (Architects, Project Managers, Real Estate agents …) for the resolution of any incident occurring during the sale or the construction process.
Preparation and coordination with the Notary Public’s office of the sale and purchase and mortgage public deeds.
Legal Secretary: advice on and drafting of the Board minutes and Board of Directors minutes of the vehicle used for the investment Project.

In the case of individuals-cooperative members, our legal advice may range from the initial membership and incorporation stage to the cooperative until the completion and handover of the residences to its members, as well as the final dissolution of the cooperative once its legal purpose is completed.

Sale and Lease Back (SLB)

Sale&lease back (slb)

It is quite common to find situations where a real estate owner is interested in selling the asset it owns whilst continuing in occupation as tenant.

SLB transactions are common in the “retail” sector, from supermarkets to “flag-ship” stores, department stores, shopping centres and even bank branches.

Advantages for the Seller – Tenant

.- Access to liquidity, without needing to resort to external financing, with the possibility of improving the company’s tax situation or increasing its depreciation.

.- The seller maintains the possession of the property, reserving, through a purchase option clause, the chance to recover the ownership of the property.

Advantages for the Buyer – Landlord

.- Obtaining a fixed income during an initial committed term.

.- Release of charges and expenses, assumed by the Seller-Tenant (repair works, taxes, insurance, licences – “triple net lease”).

.- Potential increases in the property market valuation, obtaining an added value in its subsequent sale.

HOW WE CAN HELP

In our Firm we have extensive experience of this kind of operations, helping you to structure and negotiate the SLB operation according an agreed strategy.

Construction

We do not only have clients dedicated to real estate development or integral building renovations. We also attend to construction companies’ legal needs, arising, for example from the terms of a construction agreement already signed with a promotor or as a result of any incidents arising during the life of a construction agreement.

As every construction project is different, the complexity of each case varies significantly.

Frequent consultations are focused on problems that may arise with modifications to the initial construction project, economic penalties imposed on the contractor for delays in the construction calendar, incidents related to unforeseen administrative interventions or the scope of the contractual guarantees to be granted to the developer in a construction agreement.

HOW WE CAN HELP

Depending on the size of the company, we organise ourselves to assume the legal advice of each construction project.

If the company has an internal legal counsel department, we may act as external advisor, supporting and complementing their needs.

Among our other services, we highlight the following:

Negotiation of the terms of the works execution agreement with the development company.
Coordination with the banks to obtain the necessary guarantees to be presented to the developer.
Verification of compliance with the mandatory legal obligations to be presented to the contractor by the subcontracting companies.
Legal advice on the provisional and final works reception, as well as the legal guarantee periods for the work executed.
Defence of construction companies in situations of conflict with other building agents.
Litigation before Arbitral Courts or Courts of Justice or mediation assistance.

Contract review and negotiation

During our life we will need to sign agreements related with the real estate sector, either for the rental or the purchase of a house, office or a commercial premises. Unfortunately, many people sign them without a full understanding of their legal terms.

In those important moments we always want to know and understand upfront the conditions of the documents that we are going to sign, rather than waiting for something to go wrong.

That is why we aim for our clients to consult us before signing any document. We will make sure you understand the agreement in detail and we will provide you with the necessary tools to adapt the documents to your needs, to the extent legally possible.

If you have already signed an agreement and need help to understand it, enforce it or be released from it, we may also help you.

HOW WE CAN HELP

Review and negotiation of all types of real estate transactions and documentation: leases, sale and purchase agreements, mortgages, options to purchase, “off plan” acquisitions, planning consents, warranties. We will highlight to you the “red flags” to the proposed agreement, we will explain to you the meaning of the legal language used in it, we will suggest to you the areas of potential negotiation and we will make sure that all your questions are fully answered.
Evaluation: For contracts that are already signed, we will give you an opinion and suggestions for improvement. We will explain any ambiguous provisions and, if necessary, we will suggest strategies for enforcing or being released from the contract.

Agreements with third parties/technicians

Throughout the building process it is usual to find different technicians involved. Those professionals are legally defined as “Building Agents”.

Their legal duties and obligations are determined by our Building Act (“Ley de Ordenación de la Edificación o LOE”) as well as other complementary provisions.

Among these Building Agents a relevant role resides in the Project Designer and the Work´s Director, agents that should hold the professional qualification of Architect or Engineer, as appropriate.

Project Designer: the agent that, on behalf of the developer and subject to the corresponding technical and urban regulations, drafts the architectural project. When the project is developed or completed through partial projects or other technical documents, each designer will assume the ownership of their project.
Work´s Director: the agent that, as part of the facultative direction, is responsible for the development of the work in the technical, aesthetic, urban and environmental aspects, in accordance with the project that defines it, the building licence and other mandatory authorizations and the conditions of the contract, ensuring its adequacy for the proposed purpose.
Construction Execution Director. the agent that, as part of the facultative direction, assumes the technical function of directing the material execution of the work as well as the qualitative and quantitative construction control, and its quality.
In significant construction projects, it is quite usual to have a “Project Manager” appointed: the agent which monitors the works execution through their different stages, assisting with the coordination of the different teams, controlling the costs and delivery times, as well as the general execution of the works.

HOW WE CAN HELP

Legal advice on drafting and negotiating any contract with the Building Agents (Project Designers, Works Director, Construction Execution Director, Project Managers…).
When contracts have already been signed, we will give you our opinion and suggestions for improvements.

Urban planning and licences

In all areas of real estate activity, the need to take into account the applicable urban regulations is always present.

In general, any construction act or use of the land or subsoil requires an administrative permit or licence to be obtained.

HOW WE CAN HELP

We advise private companies and individuals throughout the planning, management and execution legal process. In this sense:

We prepare legal reports and due diligence reports.
We provide legal advice on the execution of urban development plans, in cases of public and private initiative.
We advise on the establishment and development of collaborating urban entities, compensation boards, conservation entities, etc., and we participate in the drafting and processing of equidistribution projects (reparcelling, compensation).
We advise on the administrative files for obtaining the diverse municipal licences related to the real estate activity such as those of parcelling and segregation, demolition, major and minor work, activity, first occupation etc.
We provide advice on expropriation procedures and on the determination of an expropriation fair value.
We assist on administrative and judicial proceedings for the approval of planning and urban management instruments, the refusal of licences and imposition of sanctions.
We defend our client´s position in administrative and contentious-administrative proceedings.

Real Estate Finance

Bank financing in Spain has been granted by credit and financial institutions that have suffered a concentration process in the last decade. Ten years ago, more than 62 financial entities operated in the Spanish market, while currently only 11 entities operate, supervised by the European Central Bank.

The consequences of the Spanish economic crisis that occurred between 2008 and 2013, historically low interest rates, the need to achieve greater economies of scale in terms of volume and size together with the imposition of new regulations to increase capital and solvency levels have been the main reasons that have guided the banking concentration process in Spain.

We should remember, when talking about real estate financing, the relevant role REITs (Real Estate Investment Trust) has: created in 1960 by the U.S Congress their target was to enable small investors to have access to large-scale real estate investments.

Nowadays, the Spanish equivalent to REIT´s are SOCIMI (“Sociedades Anónimas de Inversión Cotizadas del Sector Inmobiliario”), public limited companies (“sociedad anónima”) whose corporate purpose is the holding of either (i) leased urban assets (by means of acquisition or development) or (ii) a stake in the share capital of other SOCIMIs or foreign entities of analogous or similar activity. Since the amendment made in 2012, SOCIMIs are subject to zero taxation under Corporate Income Tax, whether resident or non-resident in Spain.

On the other hand, the concept of real estate crowdfunding is also a trend, presented as an alternative for small scale individuals and companies with less investment capacity to participate in the real estate investment of other companies.

HOW WE CAN HELP

We advise our clients throughout the financing process, covering contractual and regulatory aspects.

Likewise, we may also advise on the design, constitution and operation of complex transactions such as SOCIMI.

Land registry

Acquiring a property is a relevant investment. Therefore, the purchase process should be clear and safe, in order to adopt the appropriate decision.

Due diligence investigations are a detailed analysis of all pertinent aspects for a real estate transaction, creating transparency and showing you the risks and more in the scope of a change of ownership.

A relevant part of the due diligence exercise is related to the land registry information.

Sometimes charges exist on the property that are not conducive to its acquisition, others may be cancelled without significant problems and some of them are not worth taking into account given their low practical significance.

Mortgages, marginal notes, preventive annotations, pre-emptive rights in favour of Public Administrations, resolutory conditions, domain reservation agreements, easements, purchase options … are figures that frequently have access to the Land Registry and require a detailed knowledge of its content and legal consequences.

HOW WE CAN HELP

As real estate specialists we will help you to understand the meaning and legal consequences of the information registered over a real estate asset, whatever its nature may be (land, built premises…)

Likewise, we will inform you about the taxation applicable to the constitution, maintenance or cancellation of the aforementioned land registry charges.

Real Estate Insolvency

Companies in the real estate sector, large and small, have been subject to insolvency proceedings.

This undesirable situation of many of them has not been caused by insufficient assets to meet obligations but rather as a consequence of illiquidity with which to meet them, especially when the banks that financed them have restricted their financing.

Creditors, Mercantile Court´s, Insolvency Administrators, Tax Agency and Social Security, employees, partners and company directors … are parties involved in an insolvency proceeding.

HOW WE CAN HELP

Our Firm has intervened in different tenders of creditors of the real estate sector. Our intervention and advice have been different according to the client interests to be defended.

We advise our clients in preparing the necessary documentation to request the pre-insolvency (“preconcurso”) or voluntary insolvency of creditors.
We advise our clients on structuring a defence strategy when a request for insolvency is required by the company creditors.
We are qualified, and thus we have already acted, as Insolvency Administrators, assisting the Court to control the activity of the insolvent company, ascertaining its assets and liabilities (creditors&debtors list), preparing general reports of situation of the insolvent company, thus propagating, as applicable, the continuity or the dissolution and liquidation of the insolvent company.
We advise creditors and debtors during the process of insolvency proceeding until their conclusion.
Likewise, one of the members of our Firm holds the professional qualification of Insolvency Administrator.

Tax

Any act or legal business made in the real estate sector implies a tax burden on the part of the State, Autonomous Community or City Council where the property is located.

Real estate taxation is a very sensitive aspect for our clients due to the high economic repercussion, since they frequently take as a tax base the real value of the real estate asset.

HOW WE CAN HELP

We help our clients in the planning of their real estate investment.

In the case of foreign clients, we verify their status as tax residents in Spain, studying the treaties signed by Spain and the client’s country of origin in order to avoid double taxation or structuring the type of corporate vehicle (NewCo) that best suits its interests.

In the acquisition phase of the real estate asset, we explain the taxation inherent to the purchase of the asset as well as its subsequent lease and/or sale.

In the maintenance phase of the asset we explain the taxation inherent to the holding of the real estate asset and the receipt of real estate incomes.

Litigation, Arbitration and Mediation (ADR)

Unfortunately, there are occasions when, due to the constitution, interpretation or execution of any agreement related to the real estate activity, a conflict that should be resolved is generated between the signing parties.

Most of the conflicts are resolved before the Courts of Justice, where parties are subject to the content of a final judgment.

On other occasions, the parties agree to arbitrate, in fact or in law, before a specific Arbitral Court, submitting the solution to an arbitral award that, with few exceptions, is not subject to subsequent appeal and is immediately enforceable. It is, therefore, a simpler procedure than the judicial process and with greater possibility of intervention in the same by the parties, faster and more agile but with a higher economic cost than the judicial process.

Some years ago, Spain imported the Anglo-Saxon figure of the mediator into its legal regulations. Mediation differs enormously from the dispute resolution forum mentioned above (judicial process and arbitration), creating a space for the mediator to approach the parties in conflict.

By means of the mediation tools available to the mediator, it facilitates communication and the negotiation process between the parties so that they can reach, by themselves, a satisfactory agreement for both. The mediator does not decide, it is the parties with assistance that reach a mediation agreement that is immediately enforceable. Mediation is one of the most widely used techniques in alternative dispute resolutions or ADRs and is implemented in different countries in Europe.

Following Michael Zeytoonian (DISPUTE RESOLUTION COUNSEL LLC), clients should make the following assessment before they commit to any course of action and before they hire any lawyers or mediators to help them resolve the dispute to obtain the best chance for a good resolution and a win-win result.

1.- Is the relationship with the person or entity I am in this dispute with important to me, personally, business-wise or both?

2.- 97% of the cases that are filed in court settle and never reach trial. So what dispute resolution process can help me achieve my emotional needs? What will give me the chance to be heard, to feel vindicated and validated, to be able to say what I need to say and have the other side listen?

3.- What approach will let me continue to engage in the conflict as long as is needed, but in a productive, efficient and protected way?

4.- Do I want to have control over both the process we use and the decision making as to the final outcome or would I rather turn that duty over to some other third party like a judge, a jury or an arbitrator?

5.- How quickly do I need to have this matter resolved?

6.- How much money can I afford to spend/do I want to spend on this process and if I did not spend it all on this process, what else could I be using that money for?

7.- If I need a creative solution to meet some of my interests and needs, what process has the ability and agility to come up with this kind of creative outcome?

8.- Is maintaining confidentiality and privacy important to me (and all those involved)?

9.- Is it possible for me and the other side to work through this dispute together, with the help of professionals trained in resolving disputes – collaborating and/or negotiating in a structured process?

10.- Have I informed myself and considered all the process options available to me before I choose which way to go and what kind of lawyers, mediators, and experts, to hire to reach the best outcome possible?

HOW WE CAN HELP

All members of our team have professional experience in judicial litigation, national and international arbitration and mediation in civil and commercial matters and are able to advise our clients about them, or preventively including clauses of submission to mediation in contracts that are signed or in advising in judicial proceedings that are to be commenced or are underway.

Likewise, one of the members of our Firm holds the professional qualification of Mediator in civil and commercial matters.

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