Most buyers in Málaga start checking a property once they have already fallen for it, agreed a price and been asked for a deposit. That is the moment when a problem is most expensive to discover. Real estate due diligence is not a formality you complete before the notary appointment: it is the information you need to decide whether to sign the arras contract, on what terms and at what price.
Our legal checklist for foreign buyers covers the whole purchase from NIE to registration. This guide goes one level deeper into the review itself: the ten checks that matter most in the province of Málaga, what each document can reveal and, above all, what you can do when a check turns up a problem.
In short:
- Do the legal review before paying the arras deposit, not between arras and completion.
- The Land Registry, the Cadastre and the property itself must describe the same thing. Differences are common on the Costa del Sol and must be explained.
- Some debts follow the property, not the seller: community fees, IBI and, if the seller is non-resident, part of their taxes.
- A finding is not necessarily a reason to walk away. It may justify a condition, a retention from the price or a renegotiation, but only if it is identified in time.
When should due diligence happen?
The usual sequence in Málaga is: reservation, arras contract, then the public deed (escritura) before a notary, usually several weeks later. Many buyers assume the checks belong to the final stage. The problem is that once the arras deposit has been paid, every problem you discover is negotiated with less leverage. As we explain in our guide to arras contracts in Málaga, the type of arras you sign determines whether you can recover your money if something goes wrong.
| Stage | What should be checked |
|---|---|
| Before reserving | Registry extract (nota simple), cadastral reference, who is selling and whether the intended use is possible. |
| Before signing arras | Planning status, community of owners, municipal taxes, occupancy, the seller’s tax residence and, if relevant, tourist use. The arras contract should reflect anything still pending. |
| Before completion | Updated Registry information, community debt certificate, cancellation of charges, final figures and the draft deed. |
| On and after completion | Withholdings and tax payments, registration of the deed and changes of ownership with the Cadastre, utilities and the community. |
The 10 checks that matter most in Málaga
1. Who is actually entitled to sell
The person showing you the property and the person who can sign the deed are not always the same. Check that the registered owners match the sellers and identify everyone whose consent is required: both spouses where the property is jointly owned, all the heirs where the owner has died and the estate has not been distributed, or the authorised representative of a company.
When a seller acts through a power of attorney, check its scope and that it remains valid. Foreign powers of attorney may need an apostille and a sworn translation, which can delay completion if nobody asks for them in advance.
2. Charges and annotations in the Land Registry
The nota simple from the Land Registry shows the registered owner and any rights or encumbrances over the property. Look beyond the obvious mortgage:
- Mortgages that have been paid off but not cancelled. A repaid loan can remain registered until it is formally cancelled. The seller must arrange cancellation, and the deed should state how and when.
- Attachments (embargos) and preventive annotations, which may indicate litigation or debts of the seller.
- Usufructs, rights of way and other easements, which may limit how you can use the property.
- Tax notes in the margin (afecciones fiscales). They are usually routine, but they mean the property is liable for any tax that may become payable on previous transfers during the review period.
The nota simple is an informative extract from the Registry, not a certificate. It describes the situation on the date it was issued, so it should be requested again close to completion. The notary will also obtain up-to-date Registry information before the signing, but by then you have usually paid your deposit.
3. Registry, Cadastre and reality must match
The Land Registry protects ownership and rights; the Cadastre (Catastro) is a tax register that describes the property and its value. In Málaga province, it is common for neither to match the property on the ground: closed terraces, extensions, a pool added years later, a basement converted into living space or a plot whose boundaries do not match the cadastral map.
Compare the surface area and the description in the nota simple, the cadastral certificate and the reality of the property. A difference is not automatically a problem, but it raises two questions that must be answered before signing: was the difference built legally, and who will pay to regularise it?
4. Planning status: licences and possible infringements
This is the check that tends to cause the most serious problems, particularly with villas and country houses (fincas and cortijos) in inland areas of the province, but it also matters with apartments that have been altered.
Ask the town hall’s planning department whether there are any planning infringement proceedings and check how the property is classified. Under Andalusia’s planning law (Law 7/2021, known as LISTA), the authorities can generally take measures to restore planning legality within six years of the completion of unauthorised works (Article 153). However, that time limit does not apply to certain cases, including works on public land and its protection zones, on rustic land within the coastal area of influence and on green spaces.
When the time limit has expired, the building does not become legal. It may instead be recognised as being in a situation asimilado a fuera de ordenación (AFO), defined in Article 173 of LISTA: it can continue to exist and be used under certain conditions, but with significant limitations on works and, in some cases, on utility connections, mortgages and resale. If a seller tells you “it’s old, nothing will happen”, ask for the documents that prove it.
For properties close to the coast, also check whether they are affected by Spain’s Coastal Law (Ley de Costas) and its protection zone, which restricts works and uses.
5. The community of owners
If the property is in a building or development with shared areas, the community of owners is a source of both debts and restrictions.
- Outstanding fees. Under Article 9.1.e of the Horizontal Property Act (LPH), the property you buy is liable for the community fees owed by previous owners for the current year and the three previous calendar years. The seller must provide a certificate of community debts at the signing, and the deed cannot be authorised without it unless the buyer expressly waives it. We advise against waiving it.
- Approved special levies (derramas). Read the minutes of recent general meetings. A façade renovation, a lift or a lawsuit against the developer may already have been approved. Agree in writing who pays instalments that fall due after completion.
- Statutes and building condition. Check the community statutes for restrictions on use and ask whether there is a pending building inspection or structural work.
6. Municipal taxes that follow the property
The Spanish property tax (IBI) is linked to the property. Under Article 64 of the Local Finance Law (TRLRHL), if the property changes owner, it remains liable for the unpaid tax under a subsidiary liability regime. Ask for the last IBI receipt and proof that there are no outstanding amounts.
The municipal capital gains tax on land (plusvalía municipal) is normally paid by the seller. However, Article 106.2 of the same law states that when the seller is an individual who is not resident in Spain, the buyer becomes the taxpayer’s substitute, meaning the town hall can claim it from the buyer. In these cases, the amount should be calculated in advance and retained from the price.
7. A non-resident seller: the 3% withholding
On the Costa del Sol, it is very common for the seller to be a non-resident, often a British, Scandinavian, Dutch or Irish owner selling a second home. Article 25.2 of the Non-Resident Income Tax Law requires the buyer to withhold 3% of the agreed price and pay it to the Spanish Tax Agency using form 211. If the buyer does not do so, the property remains liable for that amount.
Illustrative example: on a €400,000 purchase from a non-resident seller, the buyer retains €12,000 at the signing and pays it to the Tax Agency. The seller receives €388,000 and may later reclaim any excess from the Tax Agency. If the deed and the payment schedule do not reflect this, the buyer may end up paying twice.
8. Who is living in the property
Check whether the property is empty, occupied by the seller, rented or being used as a holiday let with bookings already confirmed. If there is a tenant, read the lease: depending on its terms, the tenant may have pre-emption rights under the Urban Leases Act (LAU), and the lease may continue after the sale. Agree in the contract how and when the property will be delivered vacant, and what happens if it is not.
9. Whether the use you have in mind is permitted
Due diligence must be designed around your goals. A property can be perfectly suitable as a home and unsuitable as an investment.
If you plan to rent it to tourists, three layers must be checked: the regional registration in Andalusia’s Tourism Register, the municipal rules (Málaga and other towns have restricted new tourist rentals in many areas) and the community of owners. Since April 2025, Article 7.3 of the LPH requires the owner of a flat who wants to start a holiday rental business to obtain the community’s express prior approval, by a three-fifths majority. A registration that already exists may be able to continue under the transitional rules, but it must be checked. We explain these requirements in our article on tourist licences in 2026.
If you plan to renovate, extend or divide the property, check what the applicable planning rules actually allow before you base the price on that potential.
10. Physical condition and technical documents
A lawyer reviews the legal situation; a surveyor or architect reviews the building. In older properties, villas with pools and homes with septic tanks or private water supply, a technical inspection is advisable. The seller must also provide an energy performance certificate, which is mandatory for the sale of a home in Spain.
For new-build and off-plan purchases, the review changes: check the building licence, the bank guarantee or insurance for amounts paid on account, the occupancy documentation and the warranties provided by the developer.
What to do when a check turns up a problem
A due diligence report is useful if it helps you decide. Most findings do not make a purchase impossible, but they do need to be addressed in the contract before money changes hands.
| Finding | Common way to deal with it |
|---|---|
| Mortgage or attachment registered | Cancellation by the seller before or at the signing, with part of the price paid directly to the creditor. |
| Community or IBI debts | Settlement by the seller before completion or retention from the price. |
| Non-resident seller | 3% withholding and retention for the plusvalía municipal, both reflected in the deed. |
| Approved special levies | Express clause on who pays pending instalments, or a price adjustment. |
| Undeclared extension or building differences | Regularisation by the seller, a condition in the arras contract, a price adjustment or, depending on the risk, not proceeding. |
| Planning infringement proceedings in progress | Usually a reason to stop until the scope is clear. Do not pay a deposit on the basis of verbal assurances. |
| Intended use not permitted | Reconsider the purchase: the problem is not the property, but the plan for it. |
If a check cannot be completed before the arras contract is signed, the contract can still protect you: identify specifically what is pending, set a deadline and agree that the deposit will be returned if the result is not satisfactory according to objective criteria. Vague wording such as “subject to legal review” protects nobody.
Frequently asked questions
Is due diligence mandatory when buying property in Spain?
No. Spanish law does not require it, and the deed can be signed without a prior legal review. That is exactly why the risk falls on the buyer: the law protects those who checked, not those who assumed.
Doesn’t the notary check all this?
The notary checks the identity and capacity of the parties, obtains Registry information, warns about certain debts and ensures that the deed complies with the law. The notary does not represent you, review the property’s planning status in depth or negotiate the arras contract on your behalf. We explain the difference in more detail in our article on what a real estate lawyer in Málaga handles.
How long does a property due diligence take?
A Registry extract can be obtained quickly. The town hall’s planning information and community certificates take longer, from a few days to several weeks depending on the municipality. That is why it is better to start the review as soon as you are seriously interested in a property, not after paying the deposit.
Can the review be done if I am not in Spain?
Yes. Most documents can be requested and reviewed remotely, and the purchase can be completed through a notarised power of attorney if you cannot travel for the signing.
Have a lawyer review the property before you commit
At Davo Law Offices, we advise English-, Romanian- and Spanish-speaking clients buying property in Málaga and the Costa del Sol. Our real estate lawyers review the Registry, Cadastre, planning and community situation, identify tax obligations linked to the seller, and translate the findings into specific clauses in the reservation and arras contracts.
If you have found a property, send us the listing, the nota simple if you have it and the draft contract you have been asked to sign. Contact us before paying the deposit, and we will tell you what needs to be checked in your particular case.
This article provides general information about Spanish law as at October 2026 and does not constitute legal advice for any specific case.