Buying a home in Málaga can be an excellent personal or investment decision. However, purchasing property in another country involves more than agreeing on a price and signing documents before a notary.
Foreign buyers must navigate Spanish property law, regional taxes, urban planning rules, banking controls and, in some cases, immigration questions. Many international purchasers start by searching for “buying property Málaga foreigners lawyer”, but the real question is not simply whether a lawyer is needed. It is whether the property, the contract and the intended use have been properly checked before any non-refundable payment is made.
This 2026 legal checklist explains the main steps foreign nationals should complete when buying a property in Málaga or elsewhere on the Costa del Sol.
Can foreigners buy property in Málaga?
Foreign nationals can purchase real estate in Spain whether they are resident or non-resident. EU and non-EU citizens regularly acquire homes, holiday properties and investment assets in Málaga.
However, owning property and having the right to reside in Spain are separate legal matters.
A property purchase does not automatically grant the buyer Spanish residency. This distinction is particularly important in 2026 because Spain stopped granting new residence permits through the property-based Golden Visa scheme on 3 April 2025. Buyers who intend to live in Spain must therefore assess the appropriate immigration route separately from the property transaction.
Quick legal checklist for foreign property buyers
Before completing a purchase, make sure the following points have been addressed:
- The most appropriate ownership structure has been selected.
- The buyer has obtained or applied for an NIE number.
- An independent lawyer has reviewed the property before any binding payment.
- The seller’s identity and legal ownership have been verified.
- The Land Registry description matches the property being sold.
- Mortgages, liens, attachments and other registered charges have been identified.
- The cadastral information matches the Land Registry and physical reality.
- The property complies with local planning and building regulations.
- Extensions, terraces, pools and renovations have the necessary authorisations.
- Community fees and local property taxes are up to date.
- The community statutes do not prevent the buyer’s intended use.
- Any proposed tourist rental activity is legally viable.
- The reservation or deposit contract contains appropriate protective conditions.
- Purchase taxes and additional costs have been calculated correctly.
- The origin and transfer of the purchase funds have been documented.
- The public deed, tax filings and Land Registry registration have been arranged.
- Post-completion tax and ownership obligations are understood.
Each of these checks can affect whether the transaction is safe, whether the buyer can use the property as intended and whether unexpected costs appear after completion.
1. Decide how the property should be owned
The first decision is not which property to buy, but who should legally buy it.
A property may be acquired:
- In one person’s name.
- Jointly by a married or unmarried couple.
- In different ownership percentages.
- Through a Spanish or foreign company.
- Through another legal or investment structure.
The correct option depends on the buyer’s personal circumstances, tax residence, marital property regime, financing arrangements, succession planning and intended use of the property.
For example, two buyers contributing different amounts may want the deed to record unequal ownership percentages. A married buyer may also need to provide evidence of the matrimonial property regime applicable in their country.
Using a company is not automatically more tax-efficient. It can create additional accounting, tax and compliance obligations, especially when the property will mainly be used as a private home. The ownership structure should therefore be analysed before signing a reservation agreement, not after the transaction has already been negotiated.
2. Appoint an independent property lawyer before paying a deposit
The estate agent normally represents the commercial interests involved in selling the property. The notary must remain neutral and verify the legality of the deed but does not carry out the same buyer-specific investigation as an independent lawyer.
A property lawyer acting exclusively for the purchaser should be involved before the buyer:
- Transfers a reservation payment.
- Signs an arras or deposit agreement.
- Accepts a mortgage offer.
- Commits to a completion date.
- Agrees that a payment will be non-refundable.
This early involvement is important because reservation documents are often presented as simple administrative forms. In reality, they may contain binding obligations, short deadlines or clauses allowing the seller or agent to retain the payment.
At Davó Law Offices, our real estate team assists international buyers from the preliminary investigation and contract stage through to the execution of the public deed and post-completion procedures. The objective is not merely to process the transaction, but to identify legal and practical risks before the buyer becomes irreversibly committed.
3. Obtain an NIE number
A foreign buyer will need a Número de Identidad de Extranjero, commonly known as an NIE.
The NIE is the personal identification number used by foreign nationals in Spanish legal, administrative and tax procedures. It must appear on documents and formalities relating to the foreign person, including the property purchase and associated tax filings.
The application should be started early. Depending on the buyer’s circumstances, it may be submitted:
- In Spain.
- Through a Spanish consulate abroad.
- Through an authorised representative holding a valid power of attorney.
The NIE is not a residence permit and does not determine whether the buyer is tax resident in Spain. It is an identification number required to complete the transaction and deal with Spanish authorities.
4. Consider granting a power of attorney
Foreign buyers do not necessarily need to remain in Spain throughout the purchasing process.
A properly drafted power of attorney can authorise a lawyer to complete specific tasks, such as:
- Applying for the NIE.
- Requesting documents from public authorities.
- Opening or managing the transaction through a Spanish bank account.
- Signing reservation or purchase documents.
- Attending the notary.
- Paying taxes.
- Registering the deed.
- Transferring utility contracts.
The powers granted should be adapted to the transaction rather than using an unnecessarily broad standard document.
A power of attorney signed outside Spain may require an apostille or other legalisation formalities, together with an official Spanish translation. These formalities should be confirmed before arranging the appointment with the foreign notary or Spanish consulate.
5. Verify the seller and the registered ownership
The seller must be the legal owner of the property and have the legal capacity to sell it.
This is checked through an up-to-date Land Registry report, known as a nota simple. The document normally identifies:
- The registered owner.
- The official description of the property.
- The registered surface area.
- Mortgages.
- Attachments.
- Rights of way.
- Usufruct rights.
- Legal restrictions.
- Other registered charges or limitations.
Spanish public guidance specifically recommends checking the property’s ownership, characteristics and charges through the Land Registry before purchasing.
The names appearing in the Land Registry must also be compared with the seller’s identity documents and the information contained in the proposed contract.
Additional checks may be required when the seller is:
- A company.
- Acting through a representative.
- Selling an inherited property.
- Divorced or married under a foreign matrimonial regime.
- One of several co-owners.
- Subject to insolvency or enforcement proceedings.
6. Compare the Land Registry, Catastro and physical property
One of the most important parts of legal due diligence is confirming that the property being advertised is the same property that legally exists.
Three realities should be compared:
- The description recorded in the Land Registry.
- The information held by the Spanish Cadastre, or Catastro.
- The actual physical configuration of the property.
Differences are common. A property may have an extension, enclosed terrace, swimming pool, storage room, converted garage or additional floor that does not appear correctly in the official documentation.
A discrepancy does not always make a purchase impossible, but it must be understood before completion. It may indicate:
- An unregistered construction.
- An unauthorised extension.
- Incorrect surface measurements.
- An unresolved planning infringement.
- A future regularisation cost.
- A difference between the area advertised and the area legally recognised.
The cadastral reference identifies the specific property for legal and tax purposes, but Land Registry information generally takes precedence regarding legal ownership and registered rights.
7. Check planning permission and occupation status
A clean Land Registry report does not prove that every construction or alteration complies with urban planning law.
The lawyer should review the property’s planning status with the relevant town hall and determine whether the building and its current configuration are legally authorised.
Depending on the property, the checks may include:
- Building licence.
- First occupation licence or responsible declaration.
- Planning classification of the land.
- Approved architectural plans.
- Licences for extensions and alterations.
- Change-of-use authorisations.
- Planning infringement proceedings.
- Demolition orders.
- AFO status for certain properties in an irregular planning situation.
This is particularly important for villas, rural properties and homes that have been extensively renovated.
Buyers should also consider commissioning an independent technical survey. A lawyer can assess legal status, but a qualified architect, surveyor or engineer is better placed to identify structural defects, damp, roofing problems, defective installations or unauthorised construction.
Legal due diligence and a technical inspection serve different purposes. For higher-value or older properties, both are advisable.
8. Check debts affecting the property
Certain debts may create complications for the new owner or delay the transaction.
The seller should provide evidence concerning:
- Community of owners’ fees.
- Impuesto sobre Bienes Inmuebles, or IBI.
- Municipal charges.
- Utilities.
- Existing mortgages.
- Special community assessments.
- Other debts secured against the property.
A certificate from the community administrator should confirm whether the property is up to date with community payments. Buyers should also request the minutes of recent community meetings.
The meeting minutes may reveal future expenses that do not yet appear as formal debts, such as:
- Lift installation.
- Façade repairs.
- Roofing works.
- Structural rehabilitation.
- Accessibility improvements.
- Legal disputes.
- Restrictions on tourist accommodation.
The Spanish Registrars’ guidance recommends obtaining both the latest IBI receipt and a community certificate confirming that the property is up to date with its contributions.
9. Confirm that the intended use is permitted
The legal review should be based on what the buyer plans to do with the property.
The relevant questions will differ depending on whether the property will be:
- A permanent residence.
- A holiday home.
- A long-term rental investment.
- A seasonal rental.
- Tourist accommodation.
- Renovated and resold.
- Used partly for professional activities.
A property that is legally suitable as a private home may not be suitable for tourist accommodation or commercial use.
The buyer should not rely only on the seller’s statement that the property “has rental potential”. The intended activity must be checked against:
- Local planning rules.
- Regional tourism legislation.
- Community statutes.
- Community resolutions.
- The property’s occupation documentation.
- Registration requirements.
- Any municipal restrictions.
10. Carry out specific checks before buying for tourist rental
Tourist accommodation is a regulated activity. Purchasing a property does not guarantee that it can be advertised legally on short-term rental platforms.
In Andalucía, the buyer must examine the current regional requirements, the building’s community rules and any restrictions imposed by the municipality.
For new tourist rental activity, express approval from the community of owners may be required. Current Andalucía guidance also indicates that tourist use is not permitted where the constitutive title or community statutes expressly prohibit the activity.
Before purchasing, the legal review should therefore confirm:
- Whether tourist accommodation is permitted in that location.
- Whether the community has approved or prohibited the activity.
- Whether the property satisfies habitability and equipment requirements.
- Whether an existing registration can remain valid after the sale.
- Whether a new registration or declaration is necessary.
- Whether municipal planning rules restrict the number or location of tourist properties.
- Whether the property can obtain any required rental registration number.
Never calculate the expected investment return on the assumption that a tourist licence will automatically be granted.
11. Review the reservation and arras contracts carefully
Spanish property transactions often involve several contracts before the public deed is signed.
These may include:
- An offer document.
- A reservation agreement.
- An arras or deposit contract.
- A private purchase agreement.
- A new-build purchase contract.
The name of the document is less important than its actual clauses.
Before signing, the buyer should understand:
- Whether the payment is refundable.
- What happens if the legal checks reveal a problem.
- Whether mortgage approval is a condition of the purchase.
- The consequences of missing the completion date.
- Which fixtures and furniture are included.
- Whether the property must be delivered free of occupants and tenants.
- Who is responsible for cancelling the seller’s mortgage.
- Which expenses are paid by each party.
- What happens if the seller withdraws.
- Whether the buyer may assign the contract.
A protective contract can make the purchase conditional on satisfactory legal due diligence, mortgage approval or the correction of specific defects.
Verbal assurances from the agent or seller should be written into the contract. If an important promise does not appear in the signed document, enforcing it later may be difficult.
12. Calculate the purchase taxes correctly
Property purchase taxes in Málaga depend principally on whether the property is a resale or a first transfer from a developer.
Resale property
The buyer normally pays Impuesto sobre Transmisiones Patrimoniales, or ITP.
The general ITP rate in Andalucía is 7%. Reduced rates may apply in certain circumstances, but they depend on requirements such as the value of the property, the purchaser’s age, disability status, family circumstances and use as a habitual residence.
For tax purposes, it is also necessary to check the cadastral reference value. If the purchase price is below the official reference value, the reference value may become the taxable base. If the declared price is higher, the higher amount will generally be used.
New-build property
For a newly built residential property purchased directly from a developer, the buyer generally pays:
- 10% Value Added Tax, or IVA.
- Stamp Duty, known as Actos Jurídicos Documentados or AJD.
The general AJD rate in Andalucía is 1.2%, although reduced rates may apply in specific cases.
Additional purchasing costs
The buyer should also budget for:
- Legal fees.
- Notary fees.
- Land Registry fees.
- Mortgage-related costs.
- Bank transfer and currency conversion charges.
- Technical survey fees.
- Administrative or gestoría fees where applicable.
- Insurance.
- Renovation or regularisation costs.
A personalised cost estimate should be prepared before the buyer commits to the transaction.
13. Prepare the funds and source-of-funds documentation
Spanish banks, lawyers and notaries must comply with anti-money laundering regulations.
Foreign buyers should be prepared to document:
- Their identity.
- Tax residence.
- Professional or business activity.
- The bank account from which the funds originate.
- The economic origin of the purchase funds.
- The relationship between the account holder and the buyer.
- Any loan, gift, inheritance or company distribution used to finance the acquisition.
Large transfers should not be left until the final days before completion. International banking checks, currency exchange arrangements and transfer limits can delay the transaction.
A Spanish bank account is often practical for taxes, direct debits and ongoing property expenses, although the exact payment structure should be planned according to the buyer’s circumstances.
14. Check whether the seller is tax resident in Spain
When the seller is not tax resident in Spain, the buyer has an additional tax obligation.
The purchaser must generally withhold 3% of the agreed purchase price and pay it to the Spanish Tax Agency on account of the non-resident seller’s potential capital gains tax liability. The payment is made through Form 211.
This amount is deducted from the money paid to the seller. It is not an extra 3% tax charged to the buyer.
The seller’s residence status should therefore be confirmed before completion so that the retention and payment arrangements can be included correctly in the deed and completion statement.
15. Sign the public deed before the notary
Completion normally takes place before a Spanish notary through the execution of the escritura pública de compraventa.
Before signing, the buyer or the buyer’s representative should confirm:
- The final identity of all parties.
- The agreed purchase price.
- The payment method.
- The cancellation of existing charges.
- The tax residence of the seller.
- The community fee certificate.
- The IBI position.
- The cadastral reference.
- The energy performance certificate.
- The delivery of possession and keys.
- The distribution of costs.
- Any retention required to resolve outstanding matters.
The notary verifies identity, legal capacity and the formal legality of the deed. However, the buyer’s lawyer should already have completed the broader due diligence and ensured that the deed reflects the negotiated protections.
16. Register the ownership after completion
After signing the deed and dealing with the purchase taxes, the title should be submitted to the Land Registry.
Although property registration is generally described as voluntary, it is strongly recommended. Registration protects the buyer’s title against third parties and formally records the purchaser as the registered owner.
The post-completion process normally includes:
- Filing and paying the relevant purchase tax.
- Presenting the deed to the Land Registry.
- Confirming registration in the buyer’s name.
- Changing the IBI contact details.
- Updating community ownership records.
- Transferring water, electricity and other utility contracts.
- Arranging home insurance.
- Setting up direct debits.
- Retaining copies of all tax and completion documents.
The transaction should not be considered fully finished merely because the keys have been handed over.
17. Understand the ongoing tax obligations
A foreign owner may have Spanish tax obligations even if the property is not rented and the owner does not live permanently in Spain.
Potential obligations include:
- Annual IBI.
- Waste collection or municipal charges.
- Community fees.
- Non-Resident Income Tax.
- Tax on rental income.
- Wealth-related taxes where applicable.
- Tax declarations connected with tourist or long-term rental activity.
Spanish tax treatment depends on whether the owner is resident or non-resident and may also be affected by a double taxation agreement between Spain and the owner’s country of residence. Spanish residents are generally taxed on worldwide income, while non-residents are taxed in Spain on qualifying Spanish-source income.
Tax advice should be obtained before deciding how the property will be owned or rented.
Common mistakes foreign buyers should avoid
The most expensive problems frequently begin before the notary appointment.
Common mistakes include:
- Paying a deposit before legal due diligence.
- Assuming the estate agent acts as the buyer’s legal adviser.
- Believing that a notary will investigate every planning issue.
- Accepting an advertised surface area without verification.
- Assuming an existing tourist licence will automatically transfer.
- Ignoring community meeting minutes.
- Failing to inspect extensions and alterations.
- Treating mortgage approval as guaranteed.
- Transferring funds without preparing source-of-funds evidence.
- Assuming property ownership creates a right of residence.
- Forgetting annual non-resident tax obligations.
- Allowing the seller’s lawyer or agent to select the buyer’s legal adviser.
Independent advice is particularly important when the buyer does not speak Spanish, lives abroad or is unfamiliar with local property procedures.
Frequently asked questions
Do I need to be resident in Spain to buy a property in Málaga?
No. Both residents and non-residents can purchase property in Spain. However, non-residents still need to complete the relevant identification, tax and banking procedures.
Does buying property in Málaga give me Spanish residency?
No. Property ownership and immigration status are separate. The property-based Golden Visa route stopped accepting new qualifying investments from 3 April 2025. A buyer wishing to reside in Spain must qualify under another immigration category.
Do I need an NIE before making an offer?
An offer may sometimes be made before the NIE has been issued, but the number will be required to complete the purchase and associated tax formalities. Starting the application early reduces the risk of delaying completion.
Can my lawyer complete the purchase without me travelling to Spain?
Yes, provided that the lawyer receives an appropriately drafted and valid power of attorney. The document can authorise the lawyer to complete the agreed legal, tax and notarial formalities.
Is a property survey compulsory?
A technical survey is not normally compulsory, but it is strongly advisable for older properties, villas, rural homes and properties with extensions or extensive renovations.
Can I use the property as a holiday rental?
Only if the property, building and location comply with the applicable regional, municipal, community and registration requirements. Tourist rental viability should be confirmed before signing a binding purchase contract.
Should I use the lawyer recommended by the estate agent?
The buyer is free to choose any lawyer. The essential point is that the lawyer must act independently and exclusively in the buyer’s interests.
Final advice before buying property in Málaga
Buying property in Málaga as a foreign national is entirely manageable when the transaction is properly prepared.
The safest order is simple:
- Appoint an independent lawyer.
- Obtain the NIE and prepare the funds.
- Complete legal and technical due diligence.
- Negotiate a protective contract.
- Calculate taxes and completion costs.
- Sign the public deed.
- Pay the taxes and register the ownership.
- Organise the ongoing tax and property obligations.
The purpose of legal due diligence is not to create unnecessary obstacles. It is to make sure that the buyer knows exactly what is being purchased, what it can legally be used for and which financial obligations will follow.
At Davó Law Offices, we assist foreign nationals throughout property purchases in Málaga and the Costa del Sol, including NIE applications, powers of attorney, contract review, urban planning checks, tax coordination, notarial completion and post-purchase registration.
This article provides general information based on the rules applicable in 2026. It does not replace legal or tax advice adapted to a particular property, buyer or transaction.