EDITION: August - October 2019

Ibiza Legal - The visit sheet

By Armin Gutschick & Anja Sämann-Gutschick
What is the point of this document, which is signed when you visit a property? In Ibiza, when a real estate agency shows a property to a possible buyer, usually a document is signed which leaves a record of this visit. This document is called a “visit sheet”, and both the real estate agent and the buyer should be well aware of what it means. Unfortunately, some real estate agents take the opportunity to impose obligations on the possible buyer that actually should not fall to them. Thus, the visit sheet could include, for example, a clause that obliges the buyer to take on part of the real estate agency’s commission if the purchase goes ahead. Would such a clause be valid?

In principle, the only aim of the visit sheet is to record in writing that the real estate agency has shown the property that is for sale to someone interested in buying it. Should there be any doubt, it serves the agency as proof, if it comes to claiming their fee from the seller. The following example illustrates this: an agency signs a sale agreement contract with the owner of a house in Ibiza. The buyer, after visiting the property with a commercial agent from this agency and signing the corresponding visiting sheet, draws up the purchase directly with the seller, without informing the agency. When the agency demands the payment of their commission to the seller, s/he could affirm that no keys had been given to other third parties for them to organize visits to the house, and that they themselves had shown the house to the buyer. In this case, the signature of the buyer that is on that visit sheet is enough for the real estate agency to demonstrate their part in the sale and, if they do not come to an agreement with the seller, to claim their fee through court.

However, the mere signature of a visit sheet by the buyer does not mean that they enter into a contractual obligation with the real estate agency, and thus a clear difference must be established between a visit sheet and the sale contract. The latter is a contract that is established between the seller and the agency, and thus, it is the seller and not the buyer who is obliged to pay the agency’s commission. Also, many courts estimate that the inclusion of contractual obligations on a visit sheet is misleading practice. For this reason, generally any clauses on visit sheets that include obligations for the buyer are considered null and void.

In the exceptional case in which a buyer commits to paying a commission to the real estate agency, for example because they are looking for a particular house in a specific area, a contract should be signed that includes the required stipulations with the agency. It is also possible to establish in the private purchase contract if it is the seller or the buyer who will take on the agency’s fee. In this case, none of the parties will be able to later say that they were not informed of their obligation to pay the commission, since this will have been established in the preliminary contract.

Whoever is going to request the sale of their property in Ibiza to an agency should also know the following: in Spain, these sales agreements are not regulated by law. Generally it is the seller, as the one mandating the sale, who pays the commission. In practice, this cost is included in the sales price and is generally between 5% and 6% of the price of the property. The commission is payable at the time of signing the deed of sale. On the other hand, a lawyer’s legal advice, which will offer the buyer legal certainty when it comes to buying a property, has a cost of approximately 1% of the price of sale.