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Author: Gustavo Calero Monereo


Property letting taxes in Spain
Property letting taxes in Spain

From January 2024, this year,  property lettings taxes for non-residents may be combined in a single annual return that must be filed between 1 and 20 January of the following year. This means that if you’re letting a property in Spain and you’re considered non-resident, from 2025 you’ll be able to combine all the rent received during the year, even if it’s from different tenants, into a single tax return.

N.B. From 2024 C&D Solicitors will also provide the service of the IRNR tax declaration for non-resident owners who rent out their Spanish property. Please send us an email now to if you like to be added to our mailing list and we´ll inform you about our fees plus all potential deductions to reduce your tax payment.

What is the current status of the rental property market in Spain?

Over the last few years, the purchase and sale of homes by foreigners with the intention of letting them out, especially for holiday lettings, has been key to the boom in the property market. In tourist areas such as the Costa del Sol, the Costa Tropical or Axarquía and cities such as Malaga, Marbella and Benalmádena, the volume of sales is very high.

The increase in rental prices in the Mediterranean coast of Andalusia, driven by the high demand for holiday lettings, has fuelled interest among non-resident buyers in the purchase of properties. Individuals, companies and investment funds have long had their sights set on different towns and coastal areas in Andalusia, with the goal of purchasing properties intended to be used as holiday lets.

Is it profitable to invest in a property to be let in Spain?

The answer is YES, the objective data proves it. However, it’s necessary to take into account two very important factors: the price to be paid for the property and the demand for lettings in the specific area. Many estate agents offer these data.

According to Idealista, in the first quarter of 2024, the weight of seasonal lettings as a whole in Spain reached 11% of the market. In Andalusia, seasonal lettings already represent 21% of the total number of flats let in Cadiz, 13% in Malaga, 9% in Granada and 7% in Seville.

Is it profitable to invest in a property to let in the Costa del Sol?

In the city of Malaga, over the last 4 years, rent prices have increased by almost 40% and, over the last 12 months, they’ve gone up by 14%. Currently, each ad for a long-term let published in Malaga attracts an average of 28 potential tenants. The report for the first quarter of this year 2024, published by property portal Fotocasa, shows that the average return on investment for homes in Andalusia has been 6.1%.

This report reveals a clear reduction in the profitability of the historic city centre in Malaga, which has gone from 4.3% to 1.6% in one year. This is due to the high price of housing in this area of Malaga, which increases the time required to obtain a return on your investment.

Different yields per district in Malaga

This report shows that other neighbourhoods in the city of Malaga, a bit father from the city centre, such as El Cónsul, Ciudad Universitaria, El Romeral, La Unión or Cruz de Humilladero, have provided returns in the last year ranging from 4% to 5%, as property prices in these areas are much lower. Many new build projects in the city of Malaga are being developed in these neighbourhoods.

According to this report by Fotocasa, in the western part of the Costa del Sol, the average return for homes in the last year sat at 4.5% in Marbella and, in Torremolinos, the average was 5.7%, in Benalmádena 5.1%, in Mijas 5.9%, in Fuengirola 4.7% and in Estepona 4.6%.

In the eastern part of the Costa del Sol/Axarquía, we can find Rincón de la Victoria with 4.9%, Vélez Málaga with 5.5% and Torrox with 5%. In Granada, on the Costa Tropical, we have Almuñécar with average returns of 4.6% and Motril with 5.7%.

Do non-residents have to pay property letting taxes in Spain?

Income tax for non-residents (IRNR)
Income tax for non-residents (IRNR)

The answer is YES. Every property located in Spain is subject to Non-Resident Income Tax (IRNR). If the property is let out, whether in a long-term tenancy, a short-term tenancy or as a holiday home, the owner or each of the owners will have to file Form 210. Likewise, if there are different cadastral references, a tax return must be filed for each cadastral reference.

When are non-residents exempt from declaring rental income?

For the first time, from January this year, the filing date for Form 210 is between 1 and 20 January of the following year. I.e., rent and income received from a home by a non-resident in 2024 will be declared between 1 and 20 January 2025.

Remember that it is now possible to file a single annual tax return for each owner, even if there are different tenants, as is the case for holiday lettings in Malaga.

What is the tax rate for rent received by non-residents in Spain?

The tax rate is 19% for residents in the European Union, Iceland, Norway and Liechtenstein. However, non-EU residents will be required to pay a tax rate of 24%.

Can I deduct expenses from the rent of a property if I’m non-resident?

Two scenarios must be considered: Non-residents living in the EU, Iceland, Norway and Liechtenstein can deduct expenses from the gross rental income.

However, non-residents living in other countries, i.e. outside the European Union, can´t deduct any expenses and will be liable to pay tax on the total gross income obtained from property rentals.

What tax is payable if the owner of a property is a non-resident commercial company?

In this case, the foreign company that owns the property will be required to file Form 210 annually, in the same way as a non-resident individual, as the foreign company will also be liable to pay IRNR. The tax rate will be the same as for an individual owner.

Can the Treasury interpret that I’m carrying out economic activities in Spain if I’m letting out a property?

A non-resident that owns several rental properties in Spain is not considered to operate through a permanent establishment in Spain or, in other words, is not considered to be engaging in business activities. According to Spanish tax regulations, the simple letting of several properties is not one of the cases included in the concept of a “permanent establishment”.

However, there is also the case of a non-resident letting out several properties in Spain and hiring, to manage these activities, at least one person in Spain with a full-time employment contract. In this case, the Treasury would interpret that the activities carried out are of a business nature, through a permanent establishment. This would entail liability for Company Tax and a requirement to file quarterly returns. The tax rate would be of 23%, due on the difference between income and expenditure for the permanent establishment.

What is the main thing to keep in mind if I buy a property in Spain as a rental investment?

Hire a lawyer specialising in property law to advise you during the purchase process. If you have legal questions or seek legal of fiscal certainty, a lawyer would be the right professional to ensure peace of mind. There may be limitations and restrictions to the letting of a property, in addition to other types of legal issues and your lawyer will review all this in a due diligence and inform you before you sign the private purchase contract.

C&D Solicitors, specialist lawyers in property law in Andalusia

The team of C&D Solicitors in Malaga, Andalusia
The team of C&D Solicitors in Malaga, Andalusia

At C&D Solicitors, we specialise in providing property advice to foreign clients, whether individuals seeking to buy a second home or an investment property in Spain, as well as investment companies or investment funds seeking to grow their asset portfolio and take advantage of the capital gains they can obtain in the property market and in property operation.

We offer “full service” advice throughout the process in your native language: English, Dutch, Swedish, French and German. You can call us at +0034 952 532 582, send us a WhatsApp message at +34 639 54 16 02 or write to us at We’ll look into your case, we’ll send you information about the process and a cost estimate for this, with no commitment whatsoever.

Author: Gustavo Calero Monereo, lawyer at C&D Solicitors (Torrox & Malaga, Andalusia)


Are you renting out an URBAN Andalusian property to tourists? Are you planning to do so in the future? Or are you an intermediate who rents out holiday homes in the name of the property owner? Then please read this article to the end, as new regulations for holiday homes recently have been put in place by the Junta de Andalucia. You can also ask for our summary PDF for applying for the RTA-license.   


Over the last few years, tourism in some Andalusian cities and towns has grown nonstop. Property sales, attracted partially by the boom in holiday homes and the income that can be obtained from these activities have had a direct effect on the high prices of traditional rental properties.

Due to this market situation for holiday lets, the Regional Government of Andalusia published a new Decree 31/2024, of 29 January, which entered into force on 22 February 2024. This Decree repeals and amends a few articles of the Decree published in 2016, which regulated holiday lets in Andalusia for the first time.

For the first time, this new regulation makes it possible for City Councils to limit holiday lets for reasons of general interest. Likewise, from this moment, companies or individuals managing holiday lets in one or more properties become liable to the administration and users of the properties. And also for property owners, there are various changes to adapt to.

The high demand for property sales and the attractive business of holiday lets

Property purchases by individuals, companies and investment funds in strategic locations with a strong demand for tourism have had a direct effect on property prices. Malaga and other municipalities in the Costa del Sol, such as Marbella, Benalmádena, Fuengirola, Mijas or Nerja, for instance, have seen property prices reach historic highs.

We should especially mention foreign investors, who target property investments in cities like Malaga, Seville and Granada, as well as other municipalities in the Costa del Sol and Costa Tropical. The number of holiday homes offered as holiday lets, due to this property frenzy, hasn’t stopped growing in some cities. This has led to increasing costs for traditional lets for residents, with very high prices, along with certain problems of tourist overcrowding in some areas, where residents have been slowly disappearing.

To what holiday homes in Andalusia does this Decree apply?

This Decree applies to homes equipped for immediate use, intended to be let for less than two months, where accommodation services are offered in exchange for paying a price, habitually and for tourism purposes. Tourism purposes are understood to occur when the home is marketed or advertised in tourism promotion channels, such as travel agencies, tourism companies and channels that make it possible to book accommodation.

Does this Decree apply to holiday lets in non-developable or rural land?

This Decree does not apply to homes located in a rural environment, i.e. homes in non-developable or rural land. Using these homes as holiday lets is governed by different regulations.

When can a home not be used as a holiday let in Andalusia?


Homes to be let as holiday homes must comply with a series of requirements to be registered in the Andalusian Tourism Register (RTA) and carry out activities related to holiday lettings.

Ban on the use of social housing (VPO) in the regulations of holiday homes

These homes cannot be used as holiday lets. However, it should be noted that, if you’re thinking about buying a property and the Property Register report shows a VPO qualifier, this classification is often outdated and its expiry can be requested. This is something that happens often, as VPO classification only lasts a certain amount of time. However, in many cases, the VPO qualifier continues to appear in the Property Register report, even if the property lost that legal status due to the passage of time.

Inability to operate holiday lets if the Owners’ Association expressly prohibits the use of the home for holiday letting

If the property you’d like to purchase or let is part of an Owners’ Association that expressly prohibits this activity in its by-laws (founding statutes), the home cannot be used as a holiday let. It’s uncommon to find this prohibition in older buildings or developments, since holiday lets “didn’t exist” until recently and, therefore, this wasn’t regulated in the by-laws.

However, the Community of Owners can at any time modify the Statutes and introduce the prohibition of tourist vacation rentals. Nevertheless, this would not apply to those homes that were already registered in the RTA prior to the prohibition.

NOTE: However, there is a dilemma regarding the percentage necessary to modify the Statutes of a Community of Owners for this specific limitation. Some court rulings establish that a majority of 3/5 (=60%) of the total owners would be sufficient and others establish that it is necessary for unanimity (100%) of all owners. From our legal interpretation of the law, unanimity would be necessary. In the future, we understand that it will be clarified.

Maybe in the light of this contradiction, you decide to already apply for your RTA even allthough you don´t actually rent out (yet). This might be recommendable, but you need to know that in theory the authorities have the right to cancel your RTA when you’re not submitting your rental profit in your income tax declaration (either IRPF or IRNR).

The special case of a ban on holiday lets in the by-laws of new builds

It is usually in new housing developments where the by-laws (´estatutos´) can ban this activity expressly more easily. In this case, it’s important for you or your lawyer to review the by-laws thoroughly. If you’re thinking of buying a newly build home (or off-plan) and intend to use it as a holiday let, you should know that it’s possible that, once the development has been built, the by-laws may prohibit the use of the homes as holiday lets. In other words, when you sign the private sales contract, it’s very likely impossible to know whether the by-laws will prohibit holiday lets once the developer forms the Owners’ Association.

Ban on holiday letting for homes that are incompatible with the urban planning regulations of the municipality where they are located

Homes on urban residential land with a Habitability Certificate or First-Occupancy Certificate (LPO) may be used as holiday lets. The same applies to homes that, when built, were not contrary to urban planning in the municipality and hold an unregulated resolution or an equivalent LPO certificate, if these were built prior to 1986.

Regarding this matter of the requirement to have an LPO or Habitability Certificate, the new Decree has eliminated the need to have an LPO and has replaced this with the requirement for homes to comply with urban planning regulations. Perhaps this change is designed so that, in the future, other homes lacking an LPO for different reasons, can access the RTA, for instance, if the City Council implements a certain procedure to obtain a license to use a home for tourism purposes, even if such resolution is not an LPO as such. If the City Council creates such a specific procedure and a home without an LPO obtains a license for tourism purposes, it would be understood that the home complies with the urban planning regulations of the municipality. Over the next few months, we shall see whether any City Councils implement such a procedure.

Therefore, it will still be advisable to submit the LPO or Habitability certificate to register your property in the RTA, but you can also prove that you fulfill the urban planning regulations with any other document or technical certificate.

Ban on holiday letting for urban homes recognized as Equivalent to Unregulated (DAFO)

Homes built on urban land after 1986, which do not comply with the planning regulations of the municipality where these are located, may be considered homes with a status equivalent to unregulated. If recognized as such, these may only be used as holiday lets with express authorization from the City Council for such change in use.

What should I do to meet the criterion of the regulations of holiday homes in Andalusia? 

To use a home as a holiday let, it’s necessary for the person or entity intended to engage in such activity to register the property in the Andalusian Tourism Register (RTA). To complete this registration, it’s necessary to submit an affidavit (DR) electronically, certifying compliance with the requirements provided in the Decree, and the property may be used as a holiday let after the submission of the DR. The Decree establishes the minimum contents that the affidavit must include, with one of the new features being the requirement to specify whether the home is let year-round or for specific periods, which must be specified in the affidavit (declaration).

NOTE: While publishing this news article, C&D Solicitors has submitted a first RTA-application through the new web form. Although it concerns a responsibility declaration, the system still asks for the applicant to upload the concerning documents. The form states that if you don´t upload the correct documents within 10 days, the application will be cancelled.   

What happens if I don’t have a Habitability Certificate or First-Occupancy Certificate?

There are different processes to obtain the first-occupancy certificate for a home:

How to get an LPO in Andalusia for homes built prior to 1986

This is the simplest and cheapest process, as all urban homes built in Andalusia prior to 1986 with no subsequent modifications are considered homes with planning permission and a first-occupancy certificate. Based on current urban regulations in Andalusia, called LISTA, the owner can request this administrative recognition by submitting a small project signed by an architect and paying a fee. Processing times vary for every City Council, as some are faster than others.

How to get an LPO in Andalusia for homes built after 1986

In this case, the process is lengthier and more costly, due to both the type of project to be drawn up by the architect and the fee charged by the City Council. If the home is part of a building and this building has no LPO, it’s very likely for a single home to be unable to obtain an LPO and the Owners’ Association should be the one to request the LPO for the entire building. In the case of semi-detached or fully detached properties, an LPO can be obtained as long as an architect confirms, in a project, that the home complies with urban planning regulations.

As mentioned before, if the home built after 1986 does not comply with urban planning regulations, an LPO can’t be obtained. Only a certificate of equivalent to unregulated can be procured and this is neither worthwhile nor convenient for an urban home.

What changes does the Decree introduce for managers or operators of holiday lets?

One of the most important modifications of the Decree is the new position of responsibility and relevance taken on by professionals and companies that manage, on behalf owners, the operation of properties in the holiday lettings market. Operators of holiday lets, whether they are individuals or companies and even if they only operate a single holiday let, must be registered as holders in the affidavit (DR). To register the manager as holder of the DR for a property, each and every one of the legal owners of the property must provide their authorization, by signing the appropriate assignment or management contract between the operator and the owners.

Management and administration of a property by a third party are assumed to take place when a third party takes care of the delivery and collection of keys, welcoming guests, providing services during their stay, cleaning at check-in and check-out, etc. The holder of the DR will be liable towards the administration and the users of the service, with the requirement to have a contract with the owners to carry out such an activity. They will be required to notify the administration of any changes in the legal title or the conditions of the properties.

What are the obligations for homes already registered in the RTA prior to this Decree?

Homes already registered in the RTA must check whether they meet the new, additional requirements introduced by the Decree and, if not, they’ll have certain deadlines to adapt to these.

What is the deadline provided by the Decree to comply with the regulations for holiday homes in terms of furniture and quality?

The Decree provides a period of up to one year from its entry into force, i.e. until 22 February 2025, for owners already registered in the RTA to recondition the properties. These requirements mainly refer to furniture, air conditioning, minimum room sizes, minimum quality levels, etc. For example, you now need to have 2 bathrooms when having more than 5 guests and 3 bathrooms when more than 8. If you wish to receive our summary PDF with all requirements, please just ask your legal assistant at C&D or read the total decreet in Spanish. 

What is the deadline to notify of changes in the number of beds for accommodation?

The new Decree establishes a maximum occupancy per home of 15 persons (max 4 per room), if let as the entire property, and of 6 persons if let by the room (max. 4 per room). (Otherwise you need another kind of RTA license for ´establicimiento hostelero or establicimiento apartamentos´ which also requires a business opening license from the Town Hall). It also introduces minimum and maximum surface areas for the bedrooms and their maximum occupancy, a minimum number of bathrooms, etc.

If a holiday let already registered in the RTA needs to change the number of beds due to the new standards, the decree provides owners or operators six months from its entry into force to do so, i.e. until 22 August 2024.

What is the deadline to notify of the period or periods where the home is used as a holiday home?

If your home is registered in the RTA and you intend to let your home only for a certain period of the year and not for year-round, you have 6 months to do this, i.e. until 22 August 2024.

If you use your property as a holiday let year-round, you don’t need to do anything as, after this 6-month period, the administration will assume it’s used as a holiday let year-round.

How long does a manager or company working on holiday lets have to register as a holder in the affidavit?

The companies or managers who currently manage properties as holiday lets have 6 months to notify the Tourism Register of the change in holder for the RTA registration, for each of the homes they manage.

How does the new Decree affect resolutions banning holiday lets from Owners’ Associations?

Owners association holiday rental limits
Owners association holiday rental limits

The Decree clearly and unequivocally provides that a property cannot operate as a holiday let if the Owners’ Association’s by-laws expressly prohibit tourist accommodation activities. In our opinion, the only way for an Owners’ Association to prohibit holiday lets is for it to amend the by-laws and introduce this express limitation in them.

If there is just a resolution from the Owners’ Association in the minutes of an ordinary or extraordinary meeting, without amending the by-laws to prohibit this activity, even if the resolution is registered with the Property Register, we understand that this prohibition can’t be imposed on the current owners or future buyers of the property.

Can City Councils prohibit or limit holiday lets with the new Decree?

In article 2, the new Decree, allows for “… City Councils, for imperative reasons of general interest, may establish limitations, proportionate to these reasons, in terms of the maximum number of homes used for tourist accommodation per building, area, sector or period…”.

Without a doubt, this is one of the main new features in the regulations of holiday lets in Andalusia. Due to the tourist saturation in some areas or neighborhoods of large cities like Malaga or Seville, as well as other areas in the Costa del Sol, some City Councils have been calling for this measure to enable them to limit tourist activities.

If a City Council wants to limit and prohibit such tourist activities, this must be argued and justified in detail, i.e. it’ll need to show that such a limitation is necessary with clear and objective data. It must also be published prior to its adoption.

Limitations for existing licenses

It is understood that limitations from the Town Hall or the Community of Owners won´t apply to existing licenses. However, once you have a RTA license and you in reality don´t rent out and don´t declare the income tax (IRPF or IRNR), the authority can cancel your RTA license.

C&D Solicitors

Lawyers and team of C&D Solicitors
Lawyers and team of C&D Solicitors

At C&D Solicitors, we specialize in providing property advice to foreign clients, whether individuals seeking to buy a second home or an investment property in Spain, as well as investment companies or investment funds seeking to grow their asset portfolio and take advantage of the capital gains they can obtain in the property market and in property operation.

We offer “full service” advice throughout the process in your native language: English, Dutch, Swedish, French and German. You can call us at +0034 952 532 582, send us a WhatsApp message at +34 639 54 16 02 or write to us at We’ll look into your case, we’ll send you information about the process and a cost estimate for this, with no commitment whatsoever.




Buying property in Spain as an American or Canadian
Buying property in Spain as an American or Canadian

The remarkable rise of property transactions in Spain by US and Canadian citizens was driven partly by the options to reside in Spain, with a favourable tax status for buyers. The real estate market in some areas as the Costa del Sol (Andalusia) has grown strongly in recent years.

Residence permits, such as the Golden Visa in Spain or the Digital Nomad Visa and favourable exchange rate plus the greater frequency of flights between Spain and the US have increased sales. According to there´s an increase of 90% since 2019.

Can a US or Canadian citizen buy property in Spain?

Yes, all they need is the money to buy, the desire to do it and a good exchange rate. Otherwise, there are no substantial differences between a property purchase by a US citizen or a Canadian or British citizen compared to a European citizen.

I understand that the answer may be simplistic but it isn’t since, because of the European Directive on the Prevention of Money Laundering, the European Union (EU) publishes a yearly list of countries that represent a threat to the financial system of the European Union.

Citizens resident in the countries that appear on this list have a very hard time acquiring a property in Spain, when the funds come from these countries.

Why buy property in Spain?

The prestigious American newspaper The Wall Street Journal emphasised this growth in an article published in February this year. This article analysed that prices per built square metre in different Spanish cities, such as Marbella, Malaga and Madrid, in comparison to American cities, were still very attractive for American investors.

In Spain the province of Malaga is a pole of attraction for American property investors with a constant increase in US investors with great purchasing power. Many of them interested in exclusive and luxury properties.

Benefits of investing in real estate in Spain

Spain is a very interesting country for foreign investment in real estate. The Spanish and autonomic governments have been increasing tax benefits to attract foreign investors and encourage the purchase and sale of real estate. Also the profit in the renting, purchase and selling of properties has been increasing in cities like Malaga, Seville or Madrid in the last few years. Many people and investment companies are interested in the Spanish real estate market because of its legal security, culture, climate and lifestyle. Especially the Mediterranean coast and Costa del Sol.

Currently, the dollar vs. euro exchange rate continues to be favourable to the American dollar, so this change makes investing in real estate in Spain more attractive for North American buyers.

What is the process of buying a property in Spain?

Basically, as a very short summary, we can differentiate the following steps in the legal process to purchase a property in Spain


Purchase process Spain

Reservation contract

A small deposit is paid to the estate agent or seller to take the property off the market and a period of 2 to 4 weeks is provided to sign the private contract. On many occasions this reservation contract is prepared by the estate agent. But your lawyer can take a look at it and suggest changes, if necessary.

Private Sale Contract

This is the main document governing the purchase of a property, where the buyer pays 10% of the purchase price. All the obligations of both parties are established until the signing of the public deed of sale on the date of the sale. If the property to be acquired is under construction, i.e. if the seller is a developer, the provisions of the contract and the amount payable are different to those that would apply to an existing property.

Signature of the Public Deed of Sale

This document is signed before a notary and, when it is signed, the buyer pays the rest of the price and receives the keys to the property. From that moment, the buyer will be the full owner of the property. It’ll be very important to obtain home insurance and an alarm system to prevent squatting problems in the property. Especially if the property will be vacant at different times of the year.

Payment of Taxes & Property Register

Once the Public Deed is signed, it will be necessary to pay the Tax on Asset Transfers (ITP) or Legal Deeds (AJD) for a new property, so the property can be registered in the Cadastre and the Property Register. This last phase will entail registering to change the name of the different utilities.

Legalities of Property Purchase in Spain for Americans and Canadians

Obtaining an NIE (Número de Identificación de extranjeros)

When the reservation is signed, the buyer will have to obtain a Spanish NIE (foreigners’ fiscal identification number), as well as provide the necessary financial documentation to comply with money-laundering regulations. This documentation should be provided by your law firm and/or the financial entity in Spain where you will open a current account, as appropriate.

Getting s Spanish Mortgage for purchase a property

If the buyer needs a Spanish mortgage to acquire the property, the best option is to try to obtain its approval between signing the reservation and signing the private sale contract.

We have published a long document about the process of buying a property in Spain. Here you can find all the details about this process.

Why is it important to hire a lawyer to carry out the property due diligence?

Due diligence (legal investigation) of the lawyer in Spain
Due diligence (legal investigation) of the lawyer in Spain

Buying a property in a country different from the one where the person is from without proper legal advice is an unnecessary risk. Especially because the legal cost of a lawyer is very low, in comparison to the other costs involved in a property purchase. Such as the price, the estate agents’ fees or taxes.

A law firm specialising in property law will give you peace of mind throughout the purchase process, giving you an explanation of all the details about the property and answering any questions that may arise.

Real Estate Due Diligence in Spain for American and Canadians

It’s important for the law firm representing you in your purchase process to include property due diligence, where the entire legal, planning and tax situation of the property is put down in writing. With this document, you’ll have all the relevant information about the property in writing and making the decision to buy it will be more satisfactory.

Likewise, it is ideal for the due diligence to take place before the private sale contract is signed. So when you pay 10% of the price, you’ll have all the relevant information about the property, reducing the risk of problems arising during the purchase process.

Tax Considerations for Americans and Canadians Buying Property in Spain

A law firm specialising in property and tax law will also adapt the due diligence of the property investment, depending on whether the buyer is an individual or a company. This as well as on whether the buyer intends to make an investment to operate a business activity, such as holiday lettings. Good tax advice to reduce taxes paid and maximise the returns on your investment is essential in the process of buying a property in Spain.

Luxury investment with Golden Visa
Luxury investment with Golden Visa

The purchase of a property and the Golden Visa for US citizens

The Golden Visa is a special visa for non-EU citizens to reside in Spain. The main requirement of which is to purchase one or more properties, for a minimum total price of 500,000 euros without a mortgage.

There are other requirements to obtain a Golden Visa but generally meeting these requirements isn’t a problem or isn’t generally one. The important thing is to make a financial investment in buying a property.

Qualifying for the Spanish Golden Visa

A Golden Visa enables holders to reside in Spain and move freely throughout the Schengen area, without being considered tax resident in Spain just for having this visa. A person with a Golden Visa will not be considered tax resident in Spain and will continue to pay taxes in the country of origin. Being considered tax resident in Spain will only happen when the person remains in the Spanish territory for over 183 days per year.

The visa for digital nomads for non-EU citizens

This visa allows holders to work remotely in Spain, either for a foreign company or as a freelancer, provided that at least 80% of the income comes from foreign clients.

The greatest tax advantage is that digital nomads are considered non-resident in Spain for tax purposes, i.e. they will only be taxed in Spain for income obtained from working remotely in Spain for a foreign employer or for a foreign client, if they are freelancers. For administrative and immigration purposes, digital nomads are resident in Spain.

These workers will not need to file form 720, will not need to file Wealth Tax and, for the purposes of other Tax Agencies, they are considered tax resident in Spain.

The Spanish tax for income obtained for digital nomads

The tax for income obtained from working remotely will be taxed in Spain at a flat rate of 24% on the first 600,000 € for a period of 5 years. Without a doubt, this flat-rate tax is very favourable, as a tax resident would pay up to 47% for such earned income.

Double Taxation Treaties with the US and Canada

The key question that may arise on this point is whether this income received by working remotely in Spain, on which a tax rate of 24% is applied in Spain, would be subject to taxation in the country of origin. The answer will depend on whether there is a double-taxation agreement between Spain and that country, and on the contents of the agreement.

Since a digital nomad is tax resident in Spain and can obtain a certificate of tax residence, these international agreements can be applied. Spain currently has 99 double-taxation agreements in force, including the EU-countries and:

  • USA
  • Canada
  • United Kingdom
  • Saudi Arabia
  • Switzerland
  • Morocco
  • Rusia
  • China
  • South Africa
  • Mexico
  • United Arab Emirates 

Additional Tips for a Smooth Property Purchase in Spain

C&D Solicitors Malaga, Spain
The team of C&D Solicitors Malaga, Spain

If you are planning to change your life and thinking about residing or working remotely from Spain or simply invest in the purchase of a property in Spain, don’t hesitate to contact us. Our lawyers will help you throughout the entire buying and selling process.

At C&D Solicitors we specialise in providing property advice to foreign clients. Whether individuals seeking to buy a second home or an investment property in Spain, as well as investment companies or investment funds seeking to grow their asset portfolio and take advantage of the capital gains they can obtain in the property market and in property operation.

We offer “full service” advice throughout the process in your native language: English, Dutch, Swedish, French and German. You can call us at +0034 952 532 582, send us a WhatsApp message at +34 639 54 16 02 or write to us at We’ll look into your case, we’ll send you information about the process and a cost estimate for this, with no commitment whatsoever.




Due diligence (legal investigation) of the lawyer in Spain
Due diligence (legal investigation) of the lawyer in Spain

Due to our daily professional experience as specialized property lawyers, we can´t emphasize enough the importance of proper legal advice during the buying process in the form of due diligence (legal investigation). After all, your foreign purchase requires a substantial financial investment, regardless of whether you are an individual, a company, whether the property will be used as a personal home or for rental investment purposes.

It’s not possible to provide appropriate legal advice to a property buyer or investor unless there is a process to study the legal/planning, physical and tax situation of the property. A process that should take place before the purchase private contract is signed. If this full study of the property and its total situation isn’t reflected in writing in a document usually called “property due diligence” or “property legal report”, it´s very difficult to rely on all the information that a buyer/investor needs to know before becoming contractually bound to the purchase of a property.

In this case, we aren’t only referring to buyers, as property owners or holders seeking to sell a property in Andalusia have been increasingly requesting property due diligence. So, as to know and solve any potential issues or deficiencies in the legal documentation of the property.  This legal checklist prior to selling the property will help the owner maximize the profit that can be obtained from the sale and process it as quickly as possible.

What is the property due diligence report during property conveyancing?

The property due diligence report or legal report is a legal document that any lawyer specializing in property law should draw up and send a client. Whether he or she is buying or selling, detailing all the legal and planning situations of the property he or she intends to buy or sell. This document should include all the relevant legal, planning and tax information of the property, enabling a buyer to be in possession of all the appropriate information to make the most satisfactory investment decision in terms of said property. And for a buyer to have the greatest legal certainty possible in terms of that investment.

Likewise, from a legal standpoint, this document binds the lawyer to the client and allows for defining the legal work carried out. As well as providing certainty during the conveyancing process through the detailed information explained to the buyer in the legal due diligence report.

Why is a property legal investigation so important if I’m buying a property?

The answer is simple: because this document will give you as buyer legal certainty. It will contain all the relevant information about the property you are seeking to acquire in writing, making it easier to understand and comprehend, along with an explanation of everything studied in that process. Likewise, this document includes matters that have not been ascertained yet on the date the report is drawn up, those that are pending or those that cannot be ascertained for different reasons, as appropriate.

This report will prevent or reduce the possibility of the buyer finding problems during the conveyancing process and after it, once the private purchase contract or even the public deed of sale has been signed. These are often problems that, if known to the buyer in advance, would lead to a negotiation with the seller before signing the private contract or could even conclude in abandoning the buying process.

What should the property due diligence or legal report contain?

Cadastre Spain
Cadastre Spain

Property due diligence is like a tailored suit, which means that this document and its contents will depend on the client’s profile and the intended use of the property.


The general section of this document, regardless of the type of purpose of the purchase, will be to review the cadastral (Catastro) and registry (Registro de la Propiedad) description of the property and see how it matches its physical reality.


Likewise, reviewing potential registry charges or other encumbrances, such as the existence of mortgages, easements, liens or seizures. A good property lawyer also checks if there are no debts from the service provides (water, electricity, etc.), town hall taxes or te community of owners.


It is also important to study any potential administrative easements, such as roads, coasts, the public water domain and the situation with the property owners’ association and potential debts or extraordinary assessments.


The study of the planning situation of the property is also very important and, in this case, the study will depend on the intended use of the property: a hotel, a holiday home, commercial premises, a residential home, industrial use, etc. At this point, a technician is usually called in to carry out a structural survey or checklist.


Lastly, a tax audit during property purchases is very important, especially in purchases by investment companies and investment funds. These need to obtain a valuation of these assets, as well as engage in property tax planning for the acquisition of the property, in order to save on taxes and lower the tax impact.

When should a client receive the property due diligence?

The property due diligence should be drawn up before signing the private purchase contract, a document that generally entails having the buyer pay 10% of the selling price. In other words, the important thing is for the buyer to be aware of all the legal, planning and tax information of the property before paying a substantial amount of money during the process and signing the private contract. In the property field, property due diligence is usually prepared after signing the reservation contract with the payment of a small reservation deposit and before the private contract of sale is signed.

If the buyer receives all the relevant and important information about the property in advance, he or she will have much more legal certainty in the investment. And, if there are any issues or problems, these can be negotiated with the seller and the situation can be reflected in the private purchase contract. This will have a positive effect on the process, reducing stress and the chances of the process not ending satisfactorily for both parties.

Otherwise, signing a private contract and making a substantial payment to the seller, being unaware of the legal, planning and tax situation of the property, could lead to problems between the buyer and the seller. In this scenario if there are any problems with the property in question but the seller wasn’t made aware of anything when signing the contract, the contract may not protect the buyer sufficiently.
Or, it may lead to the seller feeling that having 10% of the price in his or her pocket and a signed contract gives him or her the upper hand when negotiating changes affecting the selling price or the obligations of the parties.

Who is the right professional to draw up a property due diligence?

Without a doubt, a lawyer specializing in property law is the right professional to draw up this important document when buying or selling a property in Spain. Making an investment of a certain significance in a property asset and trying to save on the cost of a lawyer is a textbook mistake and makes absolutely no sense, as the cost of a lawyer compared to all the costs of a property purchase is quite small.

Be wary of anyone who encourages you not to hire an independent lawyer during the purchase of a property in Spain, especially when this person has any interest in the transaction. Seek the lawyer you believe is best positioned to advise you in your purchase by experience and reviews. Compare the information available on the lawyer’s website regarding the services offered and the information you receive after you make the first contact with the lawyer. Make sure that this lawyer is an expert in property law and is familiar with the subject matter.

Why is a property´s legal investigation important when I’m selling a property?

Obtaining property due diligence for a property you seek to sell is highly recommended, as the owner will be able to detect any problems or issues with the property, as well as solve them, before selling. If the owner identifies, corrects and solves the potential problems that there may be with the property before it is sold, it’s very likely that the profit obtained from the sale can be maximized, as the buyer will be more satisfied with the legal situation of the property and the transaction will be faster.

Putting a property on the market when the vendor has previously made sure that all the documentation is correct and the necessary permits are in order, will lead to any buyer being faster in finalizing the sale and will reduce any arguments to reduce the price of the property.

C&D Solicitors Malaga, Spain
The team of C&D Solicitors Malaga, Andalusia

Law firm specialized in due diligence of properties in Andalusia

At C&D Solicitors, we specialize in providing property advice to foreign clients, whether individuals seeking to buy a second home or an investment property in Spain, as well as investment companies or investment funds seeking to grow their asset portfolio and take advantage of the capital gains they can obtain in the property market and in property operation.

We offer “full service” advice throughout the process in your native language: English, Dutch, Swedish, French and German. You can call us at 0034 – 952 532 582, send us a WhatsApp message at 0034 – 639 54 16 02 or write to us at We’ll look into your case, we’ll send you information about the process and a cost estimate for this, with no commitment whatsoever.

Author: Gustavo Calero Monereo, CEO & lawyer at C&D Solicitors, Torrox/Malaga (Andalusia)



Inheritance in Spain
Inheritance in Spain

Over the last few months, we’ve come across more than one inheritance process at our law firm, for foreigners (from the EU and elsewhere) who owned assets in Spain at the time of their death. These are generally non-resident foreigners who owned a property as a second home. But some of them were also resident in Spain at the time of their death.

These inheritance processes when a person dies with assets in Spain tend to be more stressful on heirs. To the pain of the death of a loved one, we must add the heirs’ lack of knowledge of the inheritance regulations and the inheritance law in a country different from that of the person or his or her descendants, such as Spain.

For heirs in this situation, we’ll try to explain the most important points about the inheritance process for a foreigner in Spain.


  • What law should apply to the inheritance of an EU citizen with assets in Spain?

If a foreigner dies with assets in Spain, we must refer to the European Inheritance Regulation of 2012, applicable to people who died from 17 August 2015.

As a general rule, this regulation provides that the inheritance of an EU national will be governed by the law of the country where the person has his or her usual residence. This rule applies to the 27 member states of the European Union (EU), except for the United Kingdom, Ireland and Denmark, which are considered third countries. However, it does apply to the citizens of these countries who reside in any member state of the EU.

Therefore, if the deceased owned assets in Spain but was not resident in Spain, the law of the country of usual residence would apply.

  • What law applies to the inheritance process of a non-EU national with assets in Spain?

If an American citizen, for example, has his usual residence in Spain and dies, Spanish law would apply to his inheritance. If the same person had died residing in the US but owned assets in Spain, his inheritance would be governed by the law of the American State where he last resided.

This is the case because article 20 of the European Inheritance Regulation provides for the universal application of the law designated by the regulation, even when that law is not that of an EU member state.

  • Are there exceptions to the general rule of applying the law of the country of usual residence?

The law of the country of usual residence of the deceased will not apply to the inheritance if the deceased states in a last will, clearly and unequivocally, that he or she wishes to apply the law of his or her nationality to the inheritance. In this case, even if the deceased was resident in Spain at the moment of his or her death, the inheritance process for assets in Spain would be governed by the law of his or her nationality. In the case of nationals of multiple countries, they may choose the law of any of these.

This general rule is also not applicable when it is possible to prove that the deceased has a closer connection to a country different from that of usual residence. For instance, this would apply to a worker temporarily resident in a country for work reasons but who keeps his assets and family in the country of nationality.

  • What happens if the deceased has not designated the application of his or her national law in a will?

Spanish last will
Spanish last will

If a foreigner is resident in Spain at the time of death and he or she did not opt for the application of the law of his or her nationality, Spanish law will be applicable to the entire estate. So this is regardless of the country in which the assets are located.

This is the case because the European regulation establishes that the applicable law should apply to the entire estate of the deceased, not only to the assets located in Spain. The European regulation establishes the universal application of the same law to the entire estate of the deceased.

Obviously, if the deceased was not resident in Spain at the moment of death, the applicable law for the entire estate would be that of his or her nationality, if so established in the will. Or that of the country of habitual residence at the time of death, if the deceased resided in a country other than the country of nationality.


  • Is it possible to find out if the deceased signed a will in Spain?

To confirm whether a person signed a will in Spain, it is necessary to apply for a certificate of wills from the Ministry of Justice. Through this application, the Registry of Wills will certify if the deceased signed a will in Spain, when it was signed and before which notary. Once this certificate has been received, if the deceased signed a will, the heir (or his lawyer) may request a copy from the notary office where it was signed.

It is important to note that, in Spain, for a will to be valid, it must be signed before a Spanish notary. This notary will notify the Registry of Wills that a person has signed a will at the notary office. In certain cases the person can´t travel to the notary, mostly in case of disease or immobility. In that case a local notary can also make a house or hospital visit.

It is possible to sign a will without a notary being present but we won’t delve further into this case, as this is very infrequent in Spain and would require a judicial procedure for legalisation to be considered valid.

  • What documents do heirs need in the Spanish inheritance process?

If the deceased has assets in Spain and the inheritance is being handled according to the law of the nationality of the deceased, or that of his or her residence outside of Spain, the heirs should get one of the following documents from the country of origin:

This is only possible in EU countries.

    • Certificate of succession or probate

Obtained in the country of nationality of the deceased. This is possible in EU countries and non-European countries.

In addition to either of the documents mentioned, it’s also necessary to obtain an original death certificate and the certificate of wills in the country of residency.

If the deceased had property in Spain, the Public Deed of Acceptance and Adjudication of Inheritance must be signed by the heirs before a Spanish notary. This document is where they receive the title of the property and the other assets that the deceased may have in Spain. This might be a house, but also a bank account or vehicle.

Once this deed has been signed, the Inheritance Tax return will be submitted and the property will then be registered with the appropriate Property Register, so that heirs become the official owner of the property or properties of the deceased.

It is always necessary to file an Inheritance Tax return in Spain for any type of inheritance. In other words, Inheritance Tax must always be paid in Spain for goods and assets located in Spain, regardless of whether Spanish law or the law of a different country applies. Liability for inheritance tax arises from the simple fact of inheriting assets located within Spanish territory.

Here, it should be noted that Inheritance Tax in Spain presents great variability, depending on the Spanish autonomous community where the deceased resided or where the deceased had assets if he or she was non-resident. Note that, in Spain, both residents and non-residents pay the same inheritance tax (including non-EU resident and there have been no tax differences in this sense for the last few years.

  • What is the Inheritance Tax rate in Spain?

Inheritance Tax in Andalusia
Inheritance Tax in Andalusia

In Spain, each autonomous community is free to establish its own Inheritance Tax regulations and there are large differences in taxation among them. For this reason, when buying a property for either personal or investment use, it is convenient to become familiar with the Inheritance Tax rate in the region where property is to be purchased.

If you’re thinking about buying a home in Spain, our advice is to get an estimate of the Inheritance Tax for your intended heir that may be due on that property in case of death.

For more information on this subject, I recommend you read our post from April 2021 on Spanish inheritance tax. However, the autonomous community of Andalusia has one of the lowest rates of Inheritance Tax in Spain. Heirs such as a widowed spouse, children and grandchildren of the deceased, pay no Inheritance Tax in Andalusia, although it is always necessary to file a tax return.

  • What documents does a British citizen need to inherit in Spain?

Since Brexit, British citizens with assets in Spain have become more worried about the impact that their assets in Spain may have on their heirs.

It is widely known among notaries in Spain that British citizens are free to leave a will. If British law applies to the inheritance and the deceased had a will in Spain, it will not be necessary for heirs to provide an English probate document. In this case, the Spanish will is enough to process the inheritance in Spain, along with the rest of the necessary documentation.

If the deceased had no will in Spain, it would be necessary to make the UK probate and legalize it with The Hague Apostille.

  • What documents does a USA citizen need to inherit in Spain?

We are currently dealing with different inheritance processes for US citizens, which is why we would like to shed some light on this situation.

Inheritance processes for US citizens where the law of the State of nationality is applied, the main document necessary for heirs to provide is the Grant of Probate. If the deceased died without a will, they must provide a Letter of Administration.

  • Is it a good idea to sign a will in Spain?

If you have assets in Spain, even if you have a will in your country of origin, it is always advisable for a will to be signed in Spain covering only the assets located in Spanish territory.

It will always be possible to choose to apply the law of your nationality in this will. If you are not resident when you sign the will but then decide to move to Spain, through this will signed in Spain, the law of your nationality will apply to your inheritance instead of Spanish law. The financial cost of this last will signed in Spain isn’t high and will always help to make the process in Spain easier and cheaper for your heirs.

A will does not reduce taxes, i.e. it has no tax advantages, but it does help heirs deal with the bureaucracy of the inheritance process that will take place in Spain after your death.

Likewise, consider that Spanish law provides for forced heirs and it is not possible to leave your assets to whomever you choose. Therefore, if Spanish law were to apply to your inheritance, these minimum shares for forced heirs must be respected.

  • Is it possible to sell a property in Spain without having completed the inheritance process?

Many heirs receive a property in inheritance and consider putting it up for sale as, in many cases, they have no interest in holding on to that property.

Sometimes these heirs don’t have sufficient financial resources to carry out the inheritance process in Spain and pay the potential inheritance tax and Plusvalue tax. However, if they sold the property, they would indeed have the financial resources to cover the inheritance expenses and also obtain capital gains from the sale of the property.

If the heirs of the property have not completed the inheritance process in Spain, the property will be registered in the land registry and in the cadastre registry in the name of the deceased. For which reason they will be unable to sell this property, without first completing the Spanish inheritance process.

However, in Spain, it is possible to put a property on the market through any agency, even if the inheritance process has not been completed yet. In this case, any potential buyers should be informed that the inheritance process is underway and that the selling heirs will complete it, before the deed of sale is signed at the notary office, with the payment by the buyer of the total price.

It’s also possible to sign a private sales contract, through which the buyer will pay a certain amount (usually 10%) of the selling price and, using this money, the sellers/heirs will be able to complete the inheritance process and cover their expenses in Spain. The seller will have enough time after the private agreement is signed to finish the inheritance process and register the property in the Property Register, prior to signing the purchase title deed, at which time the remainder of the selling price will be paid.

IMPORTANT: Since a private contract requires the seller to complete the process within the agreed timeframe, it is very important to hire a lawyer/solicitor specialising in (international) inheritance processes. Before the private contract is signed, the lawyer will be able to confirm that the heirs’ documentation is correct, which would reduce the risk of any problems arising during the inheritance process in Spain.

  • Is it necessary to hire a lawyer to complete the inheritance process in Spain?

In Spain, there is no legal obligation to hire a lawyer for procedures of this type, but not only would I find it difficult for someone to complete this process without the advice of a specializing lawyer on these matters, but it also does not seem very advisable to forego.

It’s necessary to obtain a lot of documentation and information, and an expert lawyer will save time, headaches for heirs and surely money as well, since, from the beginning, the lawyer will only ask you for what is necessary for you in Spain as an heir to become the owner of the assets of the deceased.

For instance, obtaining a correct tax valuation of the property to be inherited may be key if heirs intend to sell the property later on, so that they can pay less capital gains tax in Spain. A lawyer would be able to give you an estimate of Inheritance Tax and Municipal Capital Gains tax (Plusvalue, the latter only being applicable to urban properties) before you accept the inheritance in Spain.

If you are going to inherit a property in Spain, it will be necessary to sign an inheritance deed before a notary. The lawyer advising you can also choose the appropriate notary to sign the deed of inheritance, as there are notaries who are very experienced in inheritance and testamentary matters for foreign citizens, whilst other notaries may be less experienced and may require more documentation than necessary.

A law firm specializing in inheritance?

C&D Solicitors: Lawyer for property conveyancing and international inheritances in Spain
C&D Solicitors: Lawyer for property conveyancing and international inheritances in Spain

C&D Solicitors is a law firm specialized in Inheritance processes and wills in Spain, with extensive experience in inheritance and testamentary matters. We have been advising both EU and non-EU citizens since 2006. Many Dutch, Belgian, Swedish, German, British and American citizens are regular clients of ours, just to give an example.

We offer “full service” advice throughout the process in your native language: English, Dutch, Swedish, French and German. You can call us at +0034 952 532 582, send us a WhatsApp message at +34 639 54 16 02 or write to us at We’ll look into your case, we’ll send you information about the process and a cost estimate for this, with no commitment whatsoever.


Wealth tax Spain
Wealth tax Spain

Do you own an expensive property in Andalusia and want to know if you need to pay Wealth Tax? Malaga is leading in Spain in the number of purchase of luxury properties and Marbella is the municipality with the largest number of transactions. Over the last two years, there has been a greater number of foreign buyers of luxury homes in Andalusia, specifically around the Costa del Sol.

Thinking about these foreign buyers interested in purchasing luxury properties or properties with much higher than average prices, we’ll attempt to clarify the current situation in Andalusia in terms of Wealth Tax.

What is the current status of the market for luxury homes in Spain?

A luxury home is considered a home purchased for over 2 million euros. We’ll start with the following data about the property market in terms of the purchase and sale of luxury homes: in 2022, these sales grew 55% in Spain compared to 2021 and, in the first half of 2023, they have grown 30% compared to the same period in 2022. Over the last year, the value of these properties has grown by 13%.

Purchase of expensive properties by foreign buyers

Without a doubt, these sales have a high international profile and we are referring to investment clients with a foreign nationality. Likewise, non-EU buyers with American, British, Chinese or Russian nationality, for instance, have displayed an interest in this market.  This is due to the possibility of applying for a Golden Visa once they have completed their property investments. 

Who is liable to pay Wealth Tax in Andalusia?

Resident or non-resident individuals, who own assets and rights with a net value exceeding 2 million euros in Andalusia, are required to file a return. From 1 January 2022, the tax value of property is calculated based on the cadastral reference value (so not the cadastral value), published by the Ministry of Finance through the Cadastre.

How much is paid in Wealth Tax in Andalusia?

In Andalusia, since 2022, the rate for this type of tax is subsidised at 100%. This means that no one pays Wealth Tax in Andalusia. It’s important to note that, even though nothing is currently payable for this tax, the requirement to file an annual Wealth Tax return still applies.

Taxpayers must comply with this annual tax obligation. Once the annual return for this tax is submitted, the resulting tax would be reduced in its entirety and, in every case, taxpayers will pay zero euros. 

Where is Wealth Tax lowest in Spain?

Currently, Andalusia and Madrid are the autonomous communities with the lowest tax burden for large buyers or property investors in Spain. Both communities have introduced a Wealth Tax reduction of 100%.

In Spain, some Autonomous Communities have entered a tax “battle” to attract large purchases and foreign investment, especially in the real estate market and the purchase of properties. Andalusia and Madrid are at the lead of tax reductions, compared to other communities.

What is the new national tax on large fortunes?

In July, Spain introduced a special tax on large fortunes. This tax has been created so that taxpayers who do not pay Wealth Tax in their Autonomous Communities pay this new tax.

New national tax next to Wealth Tax

A return for this tax must be filed in Andalusia and Madrid by:

  • residents with assets valued at over 3,7 million euros (because of a 700.000 euro exemption)
  • non-residents with assets valued at over 3 million euros

This always refers to the net value of the assets and applies per person. However, this tax has a lower tax impact compared to Wealth Tax in other Autonomous Communities in Spain, as the minimum amount exempt from taxation is higher than that of Wealth Tax.

Legal and tax advice from C&D Solicitors

C&D Solicitors: conveyancing lawyer for your Spanish (luxury) home
C&D Solicitors: conveyancing lawyer for your Spanish (luxury) home

Advice on the purchase and sale of properties, from an independent lawyer specialising on this matter, is very important to guarantee your investment and avoid surprises during the conveyancing process or later on.

If you are thinking about buying a home in Andalusia, don’t hesitate to contact our firm, C&D Solicitors in Malaga, and we’ll be glad to help you and guide you on this matter, always safeguarding your interests and position as buyer. We can assist you in English, Dutch, Swedish, German and French.

Author: Gustavo Calero Monereo, lawyer/CEO at C&D Solicitors, Torrox, Malaga (Andalusia)


OWNERS' ASSOCIATIONS holiday rental limits
OWNERS’ ASSOCIATIONS holiday rental limits

Given the boom in holiday lets in many cities over the last few years -and always taking into account the delicate balance between holidaymakers and resident owners- owners’ associations have been taking measures in this regard for many years, with the aim of limiting and, in most cases, prohibiting RTA holiday lets in their buildings. Based on our legal experience advising foreigners in Costa del Sol, we often come across these “conflicting” interests between owners’ associations and foreign buyers interested in using the property they intend to buy as a holiday let.

We’ll try to clarify the current regulations that enable owners’ associations to intervene in, limit or prohibit this activity.

How can owners’ associations prohibit or limit holiday lets?

During the process of providing legal advice in buying and selling property to our foreign clients, we’ve been coming across more and more properties where owners’ associations have amended the byelaws and prohibited holiday letting in properties that are part of that association.

The procedure that enabled owners’ associations to establish such a limitation is regulated in article 17.12 of the Law on Commonholds (LPH). It enables owners’ associations to limit or place conditions on the operation of holiday lets, by holding an owners’ association meeting and obtaining the favorable votes of over three-fifths of the total number of owners, which must, at the same time, represent over three-fifths of the shares in the association.

Inscribing holiday rental restrictions in the Property Registry

For this prohibition resolution to be enforceable upon third parties, it must be officially registered in the Property Registry (Registro de la Propiedad). In other words, if a buyer acquires a home and the association has adopted this prohibition but it’s not registered in the Property Registry or if it’s registered after the owner buys the property, the owner will be able to register the home in the RTA legally and this prohibition will not be applicable.

Likewise, this prohibition is not applicable to any homes registered in the RTA before the prohibition is adopted by the owners’ association.

Name change of an existing RTA License

Lastly, when it comes to purchasing a home that was already registered in the RTA but the owners’ association later prohibits holiday lets, the Council of Tourism of the Regional Government of Andalusia understands that, in the event that this home is sold, the RTA license will continue to be valid. The new owner who bought the property will be able to put the RTA registration in his or her name.

Is it legal for owners’ associations to prohibit holiday lets?

Prohibition to rent out by the Community of Owners?
Prohibition to rent out by the Community of Owners?

Article 17.12 of the LPH literally provides that associations may limit or place conditions on the operation of holiday lets but it does not expressly allow for prohibiting them.

Since this article does not expressly include the word “prohibit”, some judges and jurists consider that it is not possible to prohibit this activity based on this precept and with a 3/5 majority.

It would only be possible to introduce the prohibition based on a different article in the LPH, specifically article 17.5, but this would require a unanimous vote of all owners representing 100% of the shares in the association.

Legal conflict of Owners Associations restrictions for RTA holiday rental

Likewise, the Provincial Court of Cordoba in a judgment of 12 July 2022 argued that there is a jurisprudential approach that imposes a restrictive interpretation of limitations on the right to private property, as it constitutes a constitutionally acknowledged right (article 33 of the Spanish Constitution). Therefore, such a prohibition would go against the right to private property.

Without a doubt, we are facing a legal conflict that must be settled over the next few years, as we understand that, sooner or later, there will be a ruling by the Supreme Court clarifying this matter.

What can owners’ associations do to limit or condition holiday lets?

Even though it is understood that it is not possible to prohibit this activity through the 3/5 majority established in article 17.12 LPH, it is indeed possible to adopt a series of limitations or conditions, which owners’ associations can impose on homes registered or to be registered in the RTA.

The same judges or jurists who interpret that holiday-letting activity cannot be prohibited without a unanimous vote from all owners clarify what a resolution limiting or conditioning the operation of this holiday-letting activity could contain based on article 17.12 LPH and with the approval of 3/5 of the owners:

Potential restrictions for the Community of Owners

Owners’ associations can approve regulations on holiday lets, establishing internal regulations, such as:

  • limiting the number of users
  • allowing pets or not
  • establishing days or times to arrive or leave
  • obligation to obtain specific insurance for damages
  • presence of the owner or lessor at check-in to inform users specifically about the rules to use common elements
  • obligation for the owner to provide tenants with a copy of the document containing such limitations and rules
  • increase of max. 20% in service charges,
  • etc.

This resolution or internal regulation adopted by the association to limit holiday lets that would establish what criteria owners wishing to let their holiday homes would have to meet would indeed be mandatory.

What measures can owners’ associations take if these internal regulations are not followed?

These internal regulations adopted by the association may and must include the express legal consequences of not complying with these internal regulations for holiday lets. Obviously, the consequences would not be on the tenant spending a few days at the property. The consequences would be on the owner.

The logical consequence of such a breach would be the exercise of the action for injunction provided in article 7.2 LPH. This action would enable the association to require the effective cessation of holiday lets and compensation for damages, in the event that the holiday lets were to infringe upon the rules established and adopted by the association for homes used as holiday lets.

IMPORTANT: It should be emphasized that, on this matter, we are referring to what the owners’ association can do if we understand that it is not possible to prohibit holiday lets on the basis of article 17.12 LPG, as this precept refers to limitations and conditions. However, this is questionable and this debate has yet to be settled.

Can a developer prohibit holiday lets in a development before the homes are sold?

The answer is YES.

In a development of new build properties or off-plan homes, before the properties begin to be sold, the developer must draw up and register the byelaws establishing the rules for the owners’ association. Therefore, the developer could include the prohibition to use the homes as holiday lets in the byelaws.

This is currently not common but it is possible and perhaps in the future we will begin to see more cases, to provide added value to the property, especially in luxury developments. This after all would be a good way to attract potential foreign investors seeking a place to live or spend time in Spain, away from activities that may disturb the peace of the block or development.

Renting out your property Andalucia and limitations from the Town Hall

Are you investing in real estate and want to know more about potential restrictions from the Town Hall in your municipality? Then read our previous article as well:

Holiday lets in Andalucia 2023, part I: Limitations and administrative regulation.

Legal advice for investing in RTA holiday lets in Andalucia

Lawyers and team of C&D Solicitors
Lawyers and team of C&D Solicitors

Advice on the purchase and sale of properties, from an independent lawyer specializing on this matter, is very important to guarantee your investment and avoid surprises during the conveyancing process or later on. If you are thinking about buying a home in Andalusia, don’t hesitate to contact our firm, C&D Solicitors, and we’ll be glad to help you and guide you on this matter, always safeguarding your interests and position as a buyer. We can assist you in English, Dutch, Swedish, German and French.

Author: Gustavo Calero Monereo, lawyer at C&D Solicitors (Torrox/Malaga, Andalucia, Spain)



The Regional Government of Andalusia has announced a new decree to regulate holiday lets, which it hopes to approve before the summer. This decree would enable local councils to limit, through the General Urban Development Plan (PGOU), the establishment of new holiday homes.

Over the last few years, the increase in the supply of properties used as holiday lets in cities that are very appealing to tourists is causing increasingly difficult problems due to tourist overcrowding in certain areas, as well as a shortage in the supply of long-term rental housing, coupled with very high prices.

The debate has moved to the political arena and it seems that there’s a trend to limit or even ban these activities in certain cities or specific areas.

Only in Andalusia, in cities such as Seville, Granada, Cadiz and Malaga, there is a clear debate to limit new homes from continuing to be offered as holiday lets. Other areas in the Costa del Sol, such as Marbella, Fuengirola, Nerja and Benalmádena, also have a large stock of holiday lets and there are also talks about limiting this activity.

In this first part, we will talk about the current situation in Andalusia, with a special mention about the Malaga area, in terms of holiday lets and the potential limitations that could be introduced by different cities or municipalities in the medium and long term.

Current situation of holiday lets and traditional rental housing in the city of Malaga

Malaga is the Spanish city that has grown the most in terms of tourism over the last few years. This has resulted in many foreign buyers investing and continuing to invest in buying and selling homes in Malaga to be used in the holiday lets market.

To this growth of holiday lets in the city of Malaga, we must add the shortage in the supply of properties in the long-term rental housing market. According to property site Idealista, Malaga is the Spanish province capital where the supply of traditional rental housing has decreased the most over the last year, with a fall of 27%. In the province, the reduction has been 15% over the previous year.

This shortage in the supply of long-term rental housing in Malaga has mainly resulted in an increase in rent prices, which, only last year, has amounted to 25.8%. For some time now, in Malaga, the average rent being paid has been the highest in its historical series and this is not only happening in the city of Malaga itself but also in other municipalities in the Costa del Sol.

How could the future of holiday lets in Malaga look?

It is obvious that the city of Malaga is beginning to suffer a certain level of tourist overcrowding in the central district. According to a news article published on 7 February, only in central Malaga, 4.778 homes are registered in the Andalusian Tourism Register (RTA).

The nuisance caused by holiday lets for residents, tourist overcrowding and the large percentage of homes devoted to this activity has made even the mayor of Malaga acknowledge that we must limit and regulate holiday lets better. This argument is also bolstered by the need for more homes in the traditional rental market, as demand is much greater than the available supply at this time.

It is likely that, once the Regional Government passes the new regulation, the City Council of Malaga will begin to study what actions it can take to limit holiday lets in the city or at least in some areas.

We don’t know which measures the City Council of Malaga will take but it’s very likely that, in the medium or long term, the market for holiday lets in Malaga becomes limited in one way or another. This applies not only to the city but there will also be other coastal towns that will be taking measures on the matter.

Are holiday-lets profitable in comparison to traditional rental housing?

In many cases they are, but not always. Last year, we published an article on the ROI of the purchase of holiday homes in Spain so we won’t delve too deep into it now. Profitability will depend on the price paid for the home, as well as the personal situation of the owner who wants to rent the home in the holiday lets market.

From our own experience, most of our foreign clients who buy a home in Andalusia, especially in the province of Malaga, are not tax resident in Spain and need an agency to manage their holiday let.

At least 40% of their income turns into costs for the owner in this type of rental. Out of every 100 euros in rent, between 18% and 22% must be paid to the agency to manage the holiday let, in addition to a tax of 19% if the owner is resident in the EU or 24% if the owner is resident outside the EU.

If the owner is tax resident in Spain, the taxes payable on this rental property can be even higher, as this income is deemed equivalent to income from work and is taxed according to the progressive income tax scale. If the owner resident in Spain has a high income, e.g. 70,000 euros a year or more, he or she would have to pay 30% or 35% tax on this income, perhaps even more. In this case, we are talking about costs of 50% or 55% of every 100 euros received in rent.

One of the greatest benefits of traditional long-term rentals is the reduction of 50% in the income received by the owner, which would be tax-exempt, and this reduction can reach up to 90% in some cases. This reduction is only applicable to owners who are tax resident in Spain. Also the dwelling needs to be officially the first residency of the renters.

Among the great benefits of holiday lets is the possibility of the owner to use the home for his or her own enjoyment. Another great benefit of holiday lets is the significant legal problem that owners face when they let their homes long-term and the tenants stop paying rent, as the legal proceedings for eviction will always take several months and up to one year. Not to mention the uncertainty of the condition in which tenants will leave the home.

Are the limitations in holiday lets justified?

In my opinion, it is necessary to limit these activities when, in certain cities or specific areas in them, there is tourist overcrowding affecting the local residents disproportionately. Tourist overcrowding also takes its toll on the quality of public services.

Likewise, the increase of homes used as holiday lets in certain areas, such as in the central district of the city of Malaga, results in a decrease in the supply of long-term rental homes and price increases for people to rent permanent housing.

Why is access to rental housing a problem in Malaga for the resident population?

The average salary in Malaga is about 1,550 euros per month and finding a home in the capital for less than 900 or 1000 euros a month is almost impossible in many areas. If the city needs employees in different industries: teachers, nurses, clerks, hospitality, etc., can they live in Malaga on those wages and pay those rents?

In short, effective regulation is necessary, provided that holiday lets do not become criminalized and political-electoral campaigning should be avoided on this matter.

If there are objective parameters that mean such regulation is advisable, it should be done, because the problem in those areas or cities will continue to get worse. Many of us who live in the city of Malaga see such regulation or limitation as necessary to try to achieve a balance between tourism and residential activities.

Are holiday lets being limited in other parts of Spain?

In cities with a great impact from tourism, such as Madrid, Barcelona and Palma de Mallorca, just to name a few examples, measures have been introduced to limit or restrict holiday lets.

On 11 February 2022, the Balearic Islands passed a decree establishing a 4-year moratorium, during which no new holiday rental properties may be registered.

In 2018, the City Council of Palma de Mallorca prohibited holiday lets in all multi-family homes, i.e. in blocks of flats and apartments, to allow it only in single-family homes such as villas.

This ban from the City Council of Palma was challenged in court but the Supreme Court, in a judgment of 31 January 2023, agreed with the City Council in relation to the prohibition of having holiday lets in the city’s blocks of flats. In one of the most prominent arguments, the Court referred to the jurisprudence of the Court of Justice of the European Union, which argues for “prior authorization in municipalities where tension about rentals is particularly pronounced”.

Likewise, the Court considered the defense of the general right to housing correct and justified, as alleged by the City Council of Palma de Mallorca based on reports evidencing the impact of this activity in neighborhoods, the shortage in the supply of rental housing for the resident population and the significant effects on the environment, the land, energy resources, water resources, infrastructures and roads.

Potential rental limitation or prohibition by your owners´ association?

Are you investing in real estate in Andalucia and want to know more about potential limitation or prohibition for renting out your property by your owners´ association/community of owners? Then also read our article 2 about this subject:

Holiday lets in Andalusia 2023, Part 2: Limitations and prohibitions from owners associations

Legal advice about buying to let from C&D Solicitors Torrox/Malaga

Our firm, C&D Solicitors, specializes in providing legal advice in buying and selling properties for foreign residents and non-residents, when acquiring a property in Andalusia, whether a secondhand home or an off-plan home, with a multilingual firm and staff speaking English, Dutch, Swedish, German and French.

Many of our clients are thinking about holiday lets for their homes when making an investment in Spain, this being an essential requirement for some of these transactions to take place.

Even though the current property boom and property investment, especially in the province of Malaga and coastal areas, have had a positive impact on our activity, as residents in this area of Malaga, we are no strangers to some of the problems that have begun to arise in certain areas with excessive holiday lets and a lack of residential supply, with tourist overcrowding in certain areas.

If appropriate and measures considering all stakeholders aren’t taken, in the end this will all have a negative effect on tourism, against our interest and providing quality tourism.

We need tourism because it’s an essential source of activity for many companies in Andalusia, but there must always be a balance between holidaymakers and the resident population. Otherwise, this would not be positive in the long term.

Author: Gustavo Calero Monereo, lawyer at C&D Solicitors Torrox/Malaga (Andalusia)




Reference value
Challenging the new reference value of the Spanish Cadastre when buying a property

We have clients who purchased a property in Malaga last year through our law firm. They were in disagreement about the reference value (valor de referencia catastral or new minimal tax value) of the Spanish Cadaster for their urban property. Therefore they decided to challenge this value for their tax application and their arguments were upheld.

This was without the need to start any administrative or judicial proceedings. We will explain what happened in this case in this article. Hopefully with this information buyers of a home in Spain in similar circumstances will therefore be able to decide whether to challenge this reference value.

One year since the new cadastral reference value

In January 2022 the new minimum tax value in property conveyance, inheritance and gifting became effective in Spain. This tax value is called the cadastral reference value and can be obtained directly from the cadastre’s website. But to obtain this value, you will need the cadastral reference of the property and a Spanish NIF number. If there is no cadastral reference, there can be no reference value.

Why is the reference value important for your house purchase?

Even with the cadastral reference, some urban properties do not have a published reference value. Likewise, for most homes in undevelopable or rural lands, these reference values are not published. In these cases, when completing the deed of sale, inheritance or gift, the corresponding taxes will be paid based on the value in the deed. The administration may revise this declared value if it deems that the value in the deed is lower than the minimum tax value.

The reference value of a property makes it necessary to pay the Transfer Tax (ITP) in a purchase based on the said value when it is higher than the actual price paid by the buyer.

How high was the difference between the purchase price, mortgage valuation and reference value for our clients?

Our clients were purchasing a property in 2022, with a reference value 90% above the purchase price. For this reason, it was obvious that the value was excessive. This is an extreme case. These clients needed a mortgage and the mortgage valuation came up with an amount for the property about 25% higher than the purchase price. However, this appraisal value was still well below the cadastre reference value.

These clients deemed it unfair to pay ITP based on the reference value. We explained to them that they could pay ITP based on the appraisal value instead of the reference value. We did so by attaching the appraisal certificate to the deed of sale. The goal was to show that the mortgage appraisal value was appropriate to settle the corresponding taxes for the purchase.

What did our buyers decide?

Our clients decided to pay the ITP for their purchase based on the mortgage appraisal. In doing so, they took a risk since, by not paying the tax based on the reference value. They would be subject to penalty proceedings and the Tax Administration would then demand payment based on the reference value in addition to an overdue payment penalty. They assumed the risk and they were fortunate with the outcome.

The fact of paying the transfer tax based on the mortgage appraisal value has a legal foundation in the General Tax Law. The value of properties in such appraisals is one of the legal methods allowed when verifying the value of properties. The administration itself has often used these appraisals to its benefit. In sales with a mortgage where the appraisal value was higher than the purchase value of the property, it would demand tax payments based on the appraisal.

What happened after the ITP tax for the purchase was paid?

About 9 months after paying the Tax on Asset Transfers (ITP), the buyers received a notice from the Department of the Treasury of the Regional Government of Andalusia (Junta de Andalucia). In it, they were informed that value-verification proceedings had been started and they were notified of the payment proposal from the Department of the Treasury. This proposal demanded payment of the ITP based on the reference value plus a late payment penalty.

When they consulted the situation with our tax lawyer, he submitted allegations on behalf of our clients. The Department approved the allegations and considered it adequate and legal for ITP to be paid based on the mortgage appraisal value. The Treasury Department of Andalusia set aside the penalty proceedings.

Honestly, we did not expect any positive result from these initial allegations and we thought we’d have to “fight harder” on this matter. Therefore, it was a pleasant surprise that the Department directly decided to end the proceedings.

What should we take into account in future house purchases in Spain?

Valuation for your property purchase in Spain
Valuation for your property purchase in Spain

If in a property purchase the reference value is significantly above the actual price to be paid for the property, we recommend obtaining a mortgage appraisal for the property. Whether you are using a mortgage to buy is irrelevant in this case. The important thing is that these valuations are one of the methods allowed by tax regulations to establish the value of properties.

What are the costs for a mortgage valuation?

The cost of a mortgage appraisal can be between 300 and 500 euros, depending on the type of property. If the appraisal value is similar to the reference value, it would be difficult to avoid paying ITP based on the reference value. As a buyer, your consolation would be that the purchase price you are paying for the property would be an attractive price, below the market value.

However, if the appraisal value is closer to the real price you will be paying, you can take certain risks and pay ITP for your purchase based on the appraisal value. You will surely receive a notice of the beginning of penalty proceedings for you to pay ITP based on the reference value. You will have to challenge it before the Department of the Treasury.

Do you have guarantees for future cases challenging the reference value of the Cadastre?

What happened with our client above does not mean that, in the future, the administration will accept the appraisal value in all cases. However, it does open the door for it to continue accepting the value of these mortgage appraisals. This in cases where the reference value is higher than these are.

Fiscal advice for your property transfer by C&D Solicitors

The important thing is for you as a buyer to be well aware of the financial consequences before you decide to “fight” with the administration over the reference value. In doing so, it is very important for you to obtain appropriate tax advice during a purchase, inheritance or gift/donation of your property in Spain.

C&D Solicitors is a law firm specializing in conveyancing, property law and inheritance, with experience since 2006. We provide advice on the purchase and sale of properties for foreign clients, whether resident or non-resident. Our colleagues speak English, Dutch, Swedish, German and French.

Author: Gustavo Calero Monereo, lawyer at C&D Solicitors (Málaga)


Mental incapacity
Mental incapacity

Life goes by very fast. We often fail to take enough time to think about what could happen if we would get a serious health problem like mental incapacity. In which practical and legal situation would our family or friends end up if something serious were to happen to us?

Throughout our years providing legal advice to foreign clients, our law firm has come across some less-than-pleasant experiences with clients and their loved ones. They have developed certain incapacitating conditions, such as dementia or Alzheimer’s. In these unprepared situations, both the patient and the family suffer even more.

These conditions can lead to situations where more financial resources are suddenly necessary. For example to pay for a nursing home. However, the person’s mental condition can entail serious problems in terms of materializing this person’s resources or assets into cash.

There are different helpful legal instruments if executed during life and with full capacity to act. They can help and facilitate decision-making for close family members or a trusted friend. This is about prevention, in the event that we develop a mentally disabling condition in the future. Or if we have an accident that affects our capacity to act.

In legal terms, what happens when there is a loss of legal capacity?

Through this article, we explain some of the tools that exist in the Spanish legal system. Instruments to facilitate decision-making for our loved ones, in the case of conditions that impair our mental capacity to act.

In the acute phase of certain health conditions, a person may lose the ability to make his or her own decisions. In other words, in case of mental incapacity. Incapacity does not only affect everyday decisions and actions but also asset management. Assets may become “blocked” because the person does not have sufficient legal capacity to sign a purchase contract or withdraw money from his or her bank account.

In other words, when it comes to significant and substantial asset decisions, a person affected by a disabling condition or serious accident is unable to make such decisions. For instance, when selling a property owned by this person. A Notary in Spain isn´t allowed to authorize the Deed of Sale, if he or she notices that one of the sellers is incapacitated.

What process needs to be followed to make decisions on behalf of an incapacitated person?

When a person becomes incapacitated and hasn´t anticipated this fact, the only way to make decisions on his or her behalf is through a judicial procedure. This procedure takes several months to obtain a resolution and this timeframe represents a significant handicap in these situations. A medical report confirming that official mental incapacity status is needed needs to be provided. In addition, the procedure has its financial cost. However, mostly there is a certain urgency in decision-making or in terms of the need for financial resources to care for the patient.

In cases where any decision needs to be made that affects a disabled family member, one needs to turn to this judicial procedure to obtain the necessary authorization. This procedure will lead to the court issuing authorization to sell a property on behalf of the disabled person. Even to manage his or her assets held in a bank, depending on the purpose of these actions.

What happens if the patient needs medical care and refuses to get it?

A person might need hospitalization at a healthcare facility or care home but refuses any help or treatment. In cases where safety is at stake, there are judicial procedures for involuntary hospitalization and urgent, forced admission. Resolutions are issued very quickly. In a few days, the judge will rule on such admission if recommended by medical reports.

Is a Power of Attorney valid to act on behalf of the patient?

A power of attorney is a document signed before a notary. In this document, the “principal”, with full capacity to act, confers powers to a person called a “proxy”. With this document, the proxy, on behalf of the principal, can engage in different legal acts and/or transactions.

This document is very common when foreigners buy or sell properties in Spain, as they often appoint a solicitor or law firm specializing in property law. This firm is able to carry out the process to buy or sell a property in Spain on behalf of a principal. During this process, the solicitor will sign various documents and represent the client. This makes it possible for a buyer to avoid having to travel to Spain during the process. Of course Power of Attorney can also be given to a family member or friend.

The problem is that a normal Power of Attorney will cease to be valid if the principal revokes it, has mental incapacity or loses his or he capacity to act for other reasons.

Can a Power of Attorney be valid if the principal has a mental incapacity?

In a normal or general Power of Attorney, a special clause may be included to stipulate this explicitly. The Power of Attorney will continue to be valid if, in the future, the principal becomes mentally incapacitated or incapacitated due to an accident. With this clause, the proxy may engage in asset disposal on behalf of the principal who became incapacitated. In this case, it would be possible to sell a property or withdraw money from a bank account/portfolio. Even to take decisions on civil matters, such as admission to a hospital or care home. Of course, this very wide clause normally is only valid for a relative or trusted friend.

It is important to be aware of the existence of such clauses, which make the Power of Attorney preventative in nature, in light of this complex situation. These clauses may be useful to anyone resident in Spain. Even when the person is not resident in Spain, if he or she has assets in Spain, it may be interesting. Through it, asset decisions can be made on behalf of the incapacitated person without the need to engage in judicial proceedings in Spain.

This is a very convenient power to grant to a spouse or partner when assets like houses are shared. They can make use of such assets and make decisions on your behalf if you lose your capacity to act. Without such a Power of Attorney, it would be necessary to resort to judicial proceedings to sell assets shared or held in common with the mentally incapacitated person.

Is it possible to grant a Power of Attorney that is only valid when the principal becomes incapacitated?

The answer is yes, even though this isn’t very frequent. It is possible to grant a Power of Attorney that becomes valid only if the principal becomes officially incapacitated and is unable to make decisions on his or her own. If the principal never becomes incapacitated, the Power of Attorney will never be used.

In such a preventative Power of Attorney, it is very important for the principal to state in writing, in the document, how the proxy can accredit incapacity. The principal should state expressly, if a medical report is needed or if it is enough for incapacity to be accredited only with this Power of Attorney.

Granting a Power of Attorney is an act of trust in a certain person or persons. It is very important to think carefully about whom will be granted such power and for which purpose. Once this has been decided, anything that facilitates the process and makes things easier for the proxy will always be welcome.

What is a living will?

A living will is an official document where you can decide which treatments you wish to receive and which ones you reject when your health deteriorates irreversibly and you have lost capacity. This is a written statement by a person of sound mind, with instructions on health matters. These instructions must be followed in the event that there are certain clinical circumstances preventing a person from expressing his or her will personally.

This is a document designed to avoid prolongation of suffering, in case your mental situation means you are unable to make any decisions. If you disagree with extending your life artificially, in situations in which it is not worth living, a living will allow you to “die with dignity”.

In Spain, this document depends on each Autonomous Community. In Andalusia, it’s called “Declaraciòn de Voluntad Vital Anticipada” and the document is registered in the Register of Anticipated Living Wills.

Through this document, you can also record if you want to receive euthanasia if your mental condition meets the requirements established by Law to apply this treatment.

What is the purpose of a notarial last will?

Spanish last will
Do you already have a Spanish last will?

A notarial last will (testament) is a document through which a person decides how his or her assets will be distributed after death and to whom. If the deceased is not resident in Spain, the inheritance will be managed according to the law of his or her nationality.

On the other hand, if the deceased is resident of Spain, Spanish law will apply to the inheritance. However, under Spanish law it´s not possible to leave your assets to the longest living partner, which most people do wish for. This can be avoided if a person is a resident in Spain and a national of an EU country. This person can sign a last will in Spain stating the decision to apply national law to his or her estate.

What are the main ideas you should remember from this post?

If you live in Spain or you have a property in Spain, it is important for you to note the following:


It is highly advisable to grant one to a person who would be able to decide on your assets when you´d suffer from mental incapacity or there is a serious accident that impairs your capacity to act. If you are going to grant a general Power of Attorney anyway, it may be interesting to include a preventative clause in this power. That Power of Attorney will remain valid in the event you become incapacitated.


In Andalusia, this official inscribed declaration is called “Declaraciòn de Voluntad Vital Anticipada”. It allows you to write down and record your decisions in terms of the palliative care you wish to receive. We are referring to situations of incapacity due to an illness or accident, as well as in terms of euthanasia. The living will you can activate by following the instructions on the website of the Junta de Andalucia in the link.


It enables you to decide how your assets will be distributed after your death. As well as to benefit from your country’s inheritance law even if you reside in Spain.

Legal advice by C&D Solicitors

It is very important for matters as important as these to obtain advice from specialists in Spanish succession law. Our law firm, C&D Solicitors, is a specialist with experience since 2006 in providing legal advice in inheritance and property law in Andalusia. We provide our services to foreign clients resident and non-resident in Spain. Our staff speaks English, Dutch, Swedish, German and French. Please don’t hesitate to contact us, we’ll be glad to help you with your Power of Attorney, last will or inheritance in Andalusia.

Author: Gustavo Calero Monereo (lawyer at C&D Solicitors, Malaga/Andalusia)


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