Who is responsible if there is a charge on my property dating back 25 years? The proceeds of the sale have been withheld as a result.

Property Law

Antonio Flores Vila

8th of August 2001

Q. My father in law resides in Malaga. He has lived in the house for 19 years. He has sold his house for 22 million pesetas. His lawyer who is acting on behalf of both the buyer and seller has found that a lien or charge is outstanding on the house from over 25 years ago. His lawyer has advised that he cannot transfer the sale proceeds until the situation is resolved.

However in the meantime he has moved out of the house and the new residents moved in.

• Will he become liable for this loan?
• Can it be claimed that the lawyer who acted on behalf of the original purchase 19 years ago was negligent?
• Should the current lawyer have allowed the transaction to take place and the new owners to move in?

Thanks for your reply and advice

Eaves
Amsterdam

A. The first thing I have found strange is that the lawyer is representing both parties. Does that mean that he is charging twice? This is bound to create a situation of conflict of interest.

If the house had a lien or charge the lawyer should have not approved the sale, unless a deduction had been made to cover for the debt associated with the lien. However, a lien or charge dating 25 years and which has not been executed (in order to obtain monetary satisfaction) is possibly prescribed and therefore (subject to having full details) it is not operative and should be cancelled by the Registrar.

The lawyer who acted on your father´s in law behalf is probably not liable after 19 years gone. And even if he was liable, the charge has not been executed and your father in law has not lost monies due to it.

But I insist: the charge is after 25 years most probably not operative and the debt which gave rise to the security of the charge prescribed. Therefore, the proceeds of the sale should be given to you in full without any further delays. I suggest you insist your solicitor (or the buyer´s solicitor!!) on having the proceeds of the sale sent to you inmediately without delay.

If you have any further problems do not hesitate to contact us, as you will certainly need at that point some independent legal representation.

(Note: I have not been able to reply on the email address given)

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