EDITION: April - June 2019

An obstacle for non-EU buyers: obtaining a military authorization

By Armin Gutschick y Anja Sämann-Gutschick
Did you know that a Canadian citizen can freely buy an attic apartment in the centre of Ibiza, but is not allowed to buy an inland property, just a few miles from town, unless s/he receives a specific authorization from the Ministry of Defense?

The fact that non-EU citizens cannot buy rural land without military authorization is because of a law that dates back to 1975 and that has very specific consequences when it comes to buying this type of land. Since Ibiza belongs to the Balearic Military Zone, the Ministry of Defense has the right to oversee the purchase of properties by non-EU foreigners. Obtaining a military authorization beforehand is a compulsory requisite for a successful purchase operation. If you do not have such an authorization when it comes to signing the deed, the notary will refuse to notarize the purchase contract and thus the buyer will not be registered as the new owner in the Property Registry.

This situation affects about 1,500 municipalities in Spain. The areas included in this 1975 law are those called “areas of restricted access to ownership by foreigners” and its limitations are applied solely to rural land, not to urban land. After Spain became part of the European Community, citizens from member states where put on the same level as Spanish ones, which means that they are exonerated from requesting this military authorization from the Ministry of Defense, as are citizens from countries that do not belong to the EU but do belong to the Schengen area (Iceland, Norway and Sweden). These regulations apply also to legal persons, which means that a Spanish Limited Society that is made up by more than 50% of physical persons who are non-Eu or non-Schengen citizens will also require a military authorization in order to buy land located in a restricted area. To date, the issue of what will happen with British citizens if Great Britain really does abandon de EU (“Brexit”) is still unresolved. In the absence of a deal with the EU, will an English buyer in the future have to request a military authorization if s/he wants to buy a rural property in Ibiza?

Therefore, an Australian, American or Russian who wishes to acquire a property in the countryside must agree with the seller (and this must be covered explicitly in the pre-purchase agreement) on a time frame for signing the deed that is long enough to allow for the military authorization to be obtained. Unfortunately, how long it will take in each case to obtain such an authorization cannot be pre-empted. Depending on the size of the land, this process can last even up to a few months.

Generally speaking, in order to request this authorization, the following documents must be presented:
- A notarised photocopy of the applicant’s passport.
- A criminal record certificate from the country where the person normally resides.
- A map with the location of the property where the distance to the closest military installation must be indicated.
- A detailed description of the property according to the Property Registry.

All in all, I think that nowadays it makes no sense for there to be over 1,500 municipalities who, for National Defense reasons, are considered areas of restricted access to ownership by non-EU foreigners. Buying a property in a rural area should not be subject to the control of the Ministry of Defense. A practical solution could be to set up a process of differentiated authorization, guided by objective and predictable criteria. •