Investment approach
Buying from heirs: title, everyone's consent and notary sums
An heir can sell a flat once the right is on the register and all co-owners agree. What to check in the nota simple and with the community, and what the buyer withholds from non-residents.
Buying a flat from heirs is safe when their right is already entered in the Registro de la Propiedad (land registry) and all co-owners sign the sale. The registrar will not enter a transfer from someone whose right is not registered (art. 20 Ley Hipotecaria, the mortgage law), and will not make the entry without proof that taxes have been paid (art. 254). If the heirs live abroad, the buyer withholds 3% of the price toward their tax.
What it means to buy an inherited flat
An inherited flat is a property that passed to the heirs after the owner's death, and it is they who sell it, not the person named in the old documents. The inheritance is first accepted and allocated (aceptación y adjudicación de herencia), inheritance tax is paid and the heirs' right is registered.
The first question to the seller and their abogado (lawyer) is therefore a single one: what stage the paperwork has reached. If the heirs' right is already on the register, the deal is close to an ordinary one. If not, it can be prepared, but signing at the notary is put off until registration, and the timing becomes less predictable.
What to check in the nota simple and the documents
A recent nota simple (land registry extract) shows in whose name the flat is registered now. If the deceased owner still appears, the heirs' right is not entered.
Besides the usual set for any purchase, for an inherited flat check:
- whether the transfer to the heirs is registered and in which shares;
- whether inheritance tax has been paid: without proof the registrar will not make the entry, and the deal will stall;
- whether the deceased had a mortgage or other charges that must be cleared out of the price;
- whether the preliminary contract lists all co-owners as sellers;
- the homeowners' association's certificate of debts.
The last point is especially important in Catalonia. The flat answers for debts to the community for the current year and the four previous ones, including those of previous owners, and without the debt certificate the escritura (deed) is not signed unless the parties expressly waive it (art. 553-5 CCCat, the Civil Code of Catalonia). If the flat stood empty for a long time, fees for that period may not have been paid.
Why every heir's consent is needed
If the flat passed to several heirs as joint property, it can be sold whole only with the consent of all: in Catalan law, disposal of a common thing is decided unanimously (art. 552-7.6 CCCat). A majority decision does not work here.
So the buyer checks that all co-owners agree and are ready to sign, not only the heir being negotiated with. If one is against, what remain are negotiation among the heirs, a buy-out of that share by the others, or walking away from the deal. How joint ownership and its division work is covered in the article on proindiviso and dividing a common thing.
What sums are withheld if the heirs are non-residents
Heirs often live abroad, and then the buyer takes on obligations. The buyer withholds 3% of the price and pays it to the tax office toward the seller's IRNR (non-resident income tax) (art. 25.2 TRLIRNR). For the plusvalía municipal (municipal tax on the rise in land value) the buyer becomes the substitute taxpayer if the seller is an individual and a non-resident (art. 106 TRLRHL).
Worked example, not a forecast. A flat for 400,000 € is sold by two non-resident heirs at 50% each.
| Item | Amount |
|---|---|
| Price | 400,000 € |
| 3% withholding toward the sellers' IRNR | 12,000 € |
| Plusvalía municipal | calculated by the ayuntamiento (town hall), paid by the buyer as substitute taxpayer |
| Transferred to the sellers before other deductions | 388,000 € |
How to account for the plusvalía in settlements between the parties is agreed in advance in the contract. More on the withholding in the article on the 3% withholding, and on the methods of calculating the plusvalía in the article on the two methods of calculation.
How to prepare a deal with heirs
Deals with heirs take longer than ordinary ones, so the order of actions matters more than speed.
- Request the nota simple and establish whether the heirs' right is registered.
- Get from the sellers' abogado a list of all co-owners and confirmation of their consent.
- Check whether inheritance tax has been paid and whether there is proof.
- Request the community's certificate of debts and check the deceased's mortgage.
- If the heirs are non-residents, build the 3% withholding and the plusvalía procedure into the contract.
- Record in writing what stays in the flat: the previous owner's furniture and belongings.
- Sign the arras (deposit) once the timing of registering the inheritance is clear and confirmed by a document.
When this purchase does not suit
Buying from heirs does not suit a buyer with a hard deadline: if the heirs' right is not yet registered or they have not agreed among themselves, the date at the notary can slip by months. Nor does it suit someone not ready to renovate: flats of elderly owners have often gone a long time without updating, and the wiring, plumbing and windows are checked separately.
Heirs quite often name a price from personal expectations rather than the market, so it is checked against nearby transactions. DNPI does that check as part of a property valuation.
Questions and answers
Can I buy a flat if the inheritance has not been processed yet?
The deal can be prepared, but the escritura cannot be signed and the purchase cannot be registered until the heirs' right is on the register. Under art. 20 Ley Hipotecaria the registrar will refuse to enter a transfer from an unregistered holder.
What if one of the heirs is against the sale?
The flat cannot be sold whole without that heir: under art. 552-7 CCCat, disposal of a common thing requires unanimity. The options are an agreement among the heirs, a buy-out of that share or walking away.
Do the community's debts pass with the flat?
In Catalonia the flat answers for debts to the community for the current year and the four previous ones, including those of previous owners. The debt certificate is obtained before the escritura.
What does the buyer withhold if the heirs are non-residents?
3% of the price toward the sellers' IRNR, and for the plusvalía municipal the buyer becomes the substitute taxpayer. The sums and the procedure are fixed in the contract with an abogado.
How long does buying from heirs take?
If the heirs' right is already registered and everyone agrees, roughly as long as an ordinary purchase. If not, the timing depends on processing the inheritance, and anything promised as "almost ready" is worth confirming with a dated document.
