Frequently Asked Questions

The usufruct of a property is the right to enjoy its habitability without being the owner (who has the use and enjoyment of the property). If we buy a property with usufruct we will have to consider the usufructuary as if it were another seller, this one sells the right of habitability (usufruct) and the owner sells the ownership (nuda propiedad),

There are different types of usufructs, it can be: lifetime; when it lasts all the life; or temporary, granted for a determined period of time. This will affect the value of the usufruct.

If it is temporary, the value is 2 percent of the total value of the property for each year of duration of the usufruct without exceeding 70 percent of the value of the property and without taking into account periods of less than one year.

For example if the usufruct on a property of 100,000 euros is 20 years and 2 months only the 20 years will be computed, and whose value will be 20x2%=40% so 40%x100,000 euros = 400,000 euros would be the value of the usufruct.

If the temporary usufruct is less than 1 year, for example 9 months, it will count as 1 year. And the calculation on the 100000€ would be 1x2%=2% where 2%x100 000€=2000€ would be the value of the usufruct.

Remember that the percentage can never exceed 70% of the value of the property, in which case 70% and no more would be applied for the calculation of the value of the usufruct.

If it is for life, the minimum value is 10% and the maximum value is 70%. The value is calculated by subtracting the age of the usufructuary from 89.
If the usufructuary is 50 years old and the house has a value of 100 000€, it is calculated by 89-50=39% where the value is 39%x100000=39 000€.

The property may also have more than one usufructuary, passing the right from one to another as they pass away. In this case it will be necessary to calculate the value with the age of the youngest usufructuary. 89-age of the youngest. If it is a married couple who enjoys the usufruct of 80 and 70 years old we will take the age of the 70 year old then 89-70=19% the value would be 19%100 000=19 000€.

So: What is the value of the full ownership of the property? It is the sum of the value of the usufruct plus the bare ownership.

It will not matter if you are married or not with your partner, since in both cases we will be acquiring an asset in common and we will not have more or less advantages if we are married or not, since this acquisition will be governed by the same regulations. From the civil and even fiscal point of view there are no variations since the deduction for the acquisition of the habitual residence disappeared, which rewarded married couples against unmarried couples (since this deduction for the acquisition of the habitual residence was abolished for acquisitions after January 1, 2013).

However, before buying a house, we must take into account that the benefits of buying a house as a couple can end up becoming disadvantages.

By way of introduction, it is important to know that, from a legal point of view, when signing a mortgage in community of property regime, 50% of the loan and of the property are awarded to each of the parties.

But on the other hand, the main risks when buying a home as a couple and without being married are the lack of legal protection; if no rules have been previously agreed upon -and have been notarized- and the complications involved in the subsequent distribution of debts or assets.

If we want to buy an apartment as a couple, it is advisable to do it when the relationship is established and, for legal reasons, has been formalized. That is, when you have married or have become a common-law couple. It is necessary to bear in mind that the banks will be more favorable to lend money to a consolidated couple.

When we buy an apartment as a couple without being married, but establishing a community of property regime, it will give rise to a situation of joint ownership or community of property, a figure of Civil Law used to regulate the rights of co-ownership.

This community of property is based on the existence of a common and proindivisa ownership of property or even of rights belonging to different owners jointly and simultaneously. In the case of real estate, its acquisition is generally formalized by means of a public deed, in which the parties record in writing their agreements in reference to that property (such as the percentage that each one acquires).

marriages contracted under the community property regime differentiate between the separate property of each spouse (property owned by each spouse before marriage and property received by inheritance or gift during the marriage) and the community property (consisting of the earnings of the spouses during their marriage, including the profits produced by both the community property and the separate property). In the case of debts generated during the union, the separate property of each spouse also acts as guarantor.

This means that, if you are an unmarried couple and you buy a house in community property regime, the property will belong to both of you in equal parts independently of the amount contributed by each one. So, even if one of the spouses earns more than the other, the property will be community property or, in other words, it will belong to both of you in the same proportion.

What can happen is that one of the spouses contributes money privative, that is to say, only of him (for example, coming from the inheritance of his parents) for the acquisition of the family house, in which case it is very advisable to state it in the deed of purchase so that this spouse has a greater participation in the property of the house.

This is stipulated in the May 27, 2019 ruling of the Supreme Court, which states that "if it is proven that for the acquisition -of the property- privative funds have been used, the spouse who owns the money is entitled to be reimbursed the updated amount, even if he or she did not make a reservation about the origin of the money or about his or her right to reimbursement".

In marriages with a separation of property regime, the assets of each of the spouses are kept separate. Thus, the assets belonging to each of the persons before and after the marriage will remain theirs. This means that, if you buy a house as a couple in regime of separation of property, each of you will be the owner of the proportional part that you have paid (even though both of you enjoy it). If the purchase has been made only with the money of one of the spouses, it will be exclusively yours.

The marriage contracts are a document in which the couple agrees on the economic conditions that will govern their marriage. They are equivalent to the document that is signed in the case of buying a house as a couple without being married. Thus, in the case that one of the contracting parties is in debt or one contributes more capital, everything will be gathered in these capitulations and it will not suppose damage or benefit to the other part.

What is the recommended legal form for buying a home as an unmarried or married couple?

It doesn't really matter if you are married or not with your partner, since in both cases we will be acquiring a property in common, and that acquisition will be governed by the same regulations". From the civil and even fiscal point of view, there are no variations since the deduction for the acquisition of a habitual residence, which rewarded married couples as opposed to unmarried couples, disappeared.

What happens to the house in case of divorce

In the event that the relationship does not end well, several possibilities open up. In the first place, it is necessary to differentiate between the ownership of the house and the right of use, since both do not have to coincide in the same person. The right of use will be decided by the spouses or by the judge in his sentence depending on whether there are minor children or a spouse deserving of greater protection. But it is also possible that the ownership of the house is attributed to one of the spouses, regardless of who has attributed its use.

housing as an unmarried or married couple

As you can see, buying a house if you are an unmarried couple is not difficult, but the situation becomes more complicated if the children arrive because in a separation or divorce the interest and protection of the minors takes precedence. The key is to collect the agreements in a public deed that establishes the conditions in the case of a separation or divorce.

To legalize a rustic house we have to take into account two factors: the municipality where it is located and the documentation that we have of the house, the ways to legalize the house are the following ones:

• Legalization License.
• Assimilation to License.
• Assimilated Out of Ordination.

Each of them is described in detail below;

Legalization License
To qualify for this route, the property must have:

• Architect's project.
• Urban development license.
• First Occupancy License.

Procedure:
The following documents must be submitted to the municipality where the building is located:

• General application form duly completed
• Identification of the owner of the building: name and surname, address, NIF or CIF in the case of an entity.
• Site location
• Project drafted by an architect and approved by his professional association.
• Letter of payment of municipal taxes.

Assimilated to License
Requirements to opt for this route:

• Buildings completed prior to the entry into force of Law 19/1975, of May 2, 1975, on the reform of the Law on the Regime of Land and Urban Planning, and which do not have an urban planning license for their location on undeveloped land.
• Irregular buildings on urban and developable land for which the period for adopting measures to reestablish urban planning legality had elapsed after the entry into force of Law 8/1990, of July 25, 1990, on the Reform of the Urban Planning Regime and Land Valuations.
  .

Procedure:

If your home meets the above requirements, you must present the following documents to your city hall:

• General application form duly completed
• Identification of the owner of the building: name and surname, address,
  NIF or CIF in the case of an entity.
• Location and site plan.
• Proof of payment of fees.
• Technical report from a competent professional stating at least:
• The location of the property with its cadastral and registry reference, if any.
• Headlines.
• The plot on which it is located and if there are undivided participations in the
  itself.
• Characteristics and dimensions of the buildings and their compliance with the
  PGOU, indicating, if applicable, which parameters are not complied with.
• Date of completion of building works.
• If after the construction of the building it is known that works have been carried out that
  have modified its initial urban conditions (occupation, height, increase of the buildability and number of dwellings).
• Water and power supply system.
• Sewage disposal system.
• If it has adequate walkable access.

If it is intended for residential use:

1. If the dwelling has a room that performs the functions of living and
   rest, a kitchen equipment and a separate bathroom.
2. That the habitable parts are not located in the basement.
3. That the living quarters have natural lighting and ventilation
   from an exterior open space or patio, except for bathrooms and auxiliary rooms.
4. List of the works that should be carried out to comply with the requirements of
   habitability, safety and health.

Out-of-Order Assimilation

Eligibility requirements:

• Irregular buildings that are completed, with respect to which
  it is not possible to adopt measures to protect urban legality.
  or for the reestablishment of the disturbed legal order due to the expiration of the time limit.
  for its exercise in accordance with article 185.1 of Law 7/2002, of December 17, 2002.
  • That is, it was built more than 6 years ago.
  • It is not located on protected land.
  • It does not have a legality file or it has expired.

Procedure
DECLARATION OF ASSIMILATION TO OUT OF ORDINATION ORDINATION IN NON-URBANIZABLE LAND.
To adopt this procedure you must present the following documents at the town hall of the locality where the building is located:

• General application form duly completed
• Identification of the owner of the building: name and surname, address,
  NIF or CIF in the case of an entity.
• Technical certification in digital format that accredits:
• Identification of the property on a location plan, indicating the data
  registry, if registered in the Land Registry, the reference
  cadastral or, failing that, by official cartography referenced, with the
  identification of the UTM coordinates.  
• Description of the building, with an explanation of its compatibility or
  non-conformity with the urban planning, with the contribution of the
  following drawings:
  • A location plan on the official cartography of the General Plan at a scale of 1:5,000 or 1:10,000, showing the building to be registered and expressly stating that the building does not encroach on land reserved for general systems, open spaces, green spaces or equipment. 
  • Plan of the plot of land, dimensioned or surface with indication of the scale (preferably at a scale of 1:5,000).
  • Dimensioned plan showing the location of the works with respect to the boundaries of the plot.
  • Dimensioned plan for each floor of the building and/or facility with generic distribution and section, in accordance with the work actually executed. These plans will show each of the buildings, works or facilities with differentiated use, with expression of the useful and constructed surfaces.

• A photograph of each of the facades of the work, installation or building from which the constructive state of the same can be deduced, taken in color and minimum size 10 x 15 cm.
  • That the soil does not have certain risks of erosion, landslides, landslides, floods, or other natural, technological or other risks.
  • If the building has minor non-conformities with the urban planning, the impossibility or very difficult repositioning of the works that infringe the urban planning regulations must be indicated and specified.
  • Suitability of the building for the use for which it is intended by meeting the requirements of habitability.
  • Works to be carried out on the building to adapt it to the standards of habitability and basic facilities and services, and execution period.
• Basic services should preferably be provided by means of autonomous and sustainable facilities, subject in all cases to the applicable sectorial regulations.
• Exceptionally, basic services may be supplied by means of access to the networks, as long as these are accessible at the foot of the plot and the supplying company accredits the feasibility of the connection.
• Accreditation by the supply companies that it has sufficient electrical power or water flow to supply the building.
• Proof of the date of completion of the building.

DECLARATION OF ASSIMILATED TO OUT OF LAND MANAGEMENT IN UNCONSOLIDATED URBAN LAND

In order to adopt this procedure, the following documents must be submitted to the town hall of the locality where the building is located:

• General application form duly completed
• Identification of the owner of the building: name and surname, address,
  NIF or CIF in the case of an entity.
• Technical certification in digital format that accredits:
• Identification of the property on a location plan, indicating the data
  registry, if registered in the Land Registry, the reference
  cadastral or, failing that, by official cartography referenced, with the
  identification of the UTM coordinates.
• Description of the building, with expression of its compatibility or non-compatibility with urban planning, with the contribution of the
  following drawings:
  •   A location plan on the official cartography of the General Plan at a scale of 1:5,000 or 1:10,000, showing the building to be registered and expressly stating that the building does not encroach on land reserved for general systems, open spaces, green spaces or equipment.
  • Plan of the plot of land, dimensioned or surface with indication of the scale (preferably at a scale of 1:2,000).
  • Dimensioned plan showing the location of the works with respect to the boundaries of the plot.
  • Dimensioned plan for each floor of the building and/or facility with generic distribution and section, in accordance with the work actually executed. These plans will show each of the buildings, works or facilities with differentiated use, with expression of the useful and constructed surfaces.
  • A photograph of each of the facades of the work, installation or building from which the constructive state of the same can be deduced, taken in color and minimum size 10 x 15 cm.

• If the building has minor non-conformities with the urban planning, the impossibility or very difficult repositioning of the works that infringe the urban planning regulations must be indicated and specified.
• Suitability of the building for its intended use by meeting the requirements of
  habitability.
•  Works to be carried out on the building to adapt it to the standards of habitability and basic facilities and services, and execution period.
• Proof of the date of completion of the building.