People planning to buy a property abroad are being urged to use an independent lawyer – and a different one from the seller.
In the summer months, Simon Conn, the UK’s leading overseas property professional and financial advisor, sees a spike in the number of enquiries from people planning to buy in another country. This is because people take their annual holiday and come home dreaming of buying a holiday home or even making a permanent move to a foreign land.
Simon is often asked about the benefits of using an independent overseas lawyer rather than using the same lawyer as the seller, or just relying on a local Notaire – a qualified lawyer who is licensed to witness signatures on documents for use abroad.
Simon said: “When you purchase a property in the UK, you would always use an independent lawyer rather than using the same lawyer as the seller. This is for several reasons. First of all, a solicitor cannot act in the best interests of his client if he is acting for both sides. The buyer and seller want different things from a transaction and if one lawyer acted for both he cannot do the best job he can for either of them. The lawyer in those circumstances would be torn between his obligations to both sides and a conflict of interests would be present.”
In the UK, a solicitor is prohibited from acting for both sides of a transaction due to a potential conflict of interests and their inability to act in the best interests of either party. The same principles apply when buying a property abroad, no matter what people tell you. Even if the law in the other country allows a lawyer to act for both sides it does not make sense to use the same lawyer as you want somebody who is acting in your best interest rather than also looking after the interest of the other side.
Some countries use the Notarial system and it is sometimes thought that you do not need a lawyer to act for you in a purchase. This myth is perpetuated by agents who either do not understand the role of a lawyer or are worried that a lawyer may get in the way of the sale and therefore their commission. The Notary does not, generally, get involved in a transaction until the end. Their role is normally to witness the title deed and in some cases to register the property and to make sure that the taxes are paid.
The Notary would not tend to get involved in all those things that need to be done before you get to the stage of signing the deed, such as searches on the property, drafting and approving the contract, arranging things like power of attorney and any number of other things that may crop up before completion. Getting the Notary involved is the last stage of the transaction, not the whole thing.
Generally speaking the cases that we see where there is a problem with the property are where the purchaser did not have an independent lawyer, or worse still did not use a lawyer at all."