(Particular reference to real estate investments)

The Ley de Apoyo a los Emprendedores y su Internalización (Support and Internalisation of    Entrepreneurs Act) came into force on September 29th, 2013, and its purpose is the introduction of  measures to facilitate investments in Spain, be it in companies, real property or other sectors.

With the obvious intention to attract foreign capital to Spain, new rules have been approved to make it easier for non-EU citizens to enter and stay in Spain  (as EU citizens are already entitled to free movement and residence).- The non-UE citizens at whom such measures are directed must legally qualify as “investors”, “entrepreneurs”, “highly qualified professionals” or “workers being transferred within the same company or group of companies”.

This article will generally refer to the different kinds of investment which “make it easier” for those who make such investments to stay or reside in Spain, but this first section will specifically refer to real property investment (I) while successive instalments will address other kinds of investment.

These measures, as mentioned above, tend to facilitate the investor’s entrance and establishment in Spain, but they demand that certain requirements be complied with, such as the three-month maximum stay previously established by Regulation (EC) 562/2006, or the conditions to stay included in Regulation (EU) 265/2010 (Schengen) and Regulation (EC) 562/06 concerning the movement of persons with long-term visas and residence authorisations.

STAY AND RESIDENCE VISA FOR INVESTORS:

A non-resident foreigner who intends to enter the Spanish territory to make a significant investment may apply for either a stay visa or a residence visa, whether such a real estate investment is made directly or through a legal person (e.g. a trading company) whose registered office is not located in a territory considered by Spanish Law a “tax haven” and in which, directly or indirectly, they hold the majority of the voting rights which allow them effectively to control its management board.

SIGNIFICANT INVESTMENT:

The “significant investment” which the foreign non-resident citizen is required to make to obtain this kind of visa is in some cases determined by the “economic value of the investment”  and, in other cases, by the nature of the investment or the sector to which it relates.

“Significant investments” based on the economic value involved must meet the following minimum value requirements:

• Purchase of real property for € 500,000.00 or more.
• Not less than € 2,000,000.00 in the case of investments in public debt.
• Not less than € 1,000,000.00 where the investment relates to shares or stock in Spanish companies.
• Opening deposit accounts with Spanish financial entities of at least € 1,000,000.00.

While this is not the primary subject of this summary, it should not be forgotten that there are other kinds of significant investment which do not need to meet any requirement in terms of a minimum amount of money to be invested, but are based on what we could call the “quality” of the investment, be it for social or innovation reasons or for the development of an entrepreneurial project in Spain which can be considered of general interest as a result of creating employment, having a relevant economic impact in a specific geographic area or constituting an important contribution to scientific or technological innovation.

  SIGNIFICANT INVESTMENT IN REAL PROPERTY (I)

REQUIREMENTS.

The net amount of a monetary investment in real property required to apply for a visa must be at least € 500,000.00 per applicant, which must be fully allocated to the purchase of real estate (i.e. first the investment, then the visa application).

The term real property does not in any way mean one only property or one only kind of property, but can refer to a residential home (for personal residency or otherwise), business premises, a rustic or urban plot of land, or other kinds of real property such as tourist accommodation (holiday apartments, hotel rooms, hotel-apartment units, etc).

Net amount is to be taken to mean that the amount used for the “investment” must be at least an effective € 500,000.00, without any liens or charges whatsoever. That is, the foreign investor must contribute at least € 500,000.00 to the Spanish economy. Any amount in excess thereof is authorised to bear liens or charges.

By way of an example: If a property is purchased for € 800,000.00 then the purchaser must provide a net amount of at least € 500,000.00 “without any liens or charges” and, consequently, such an amount may not be obtained through a mortgage loan or any other right affecting the property (i.e. a guarantee recorded at the Land Registry such as a condition subsequent, etc). Any amount in excess of € 500,000.00 (€ 300,000.00 in our example) may come from a mortgage (even if the whole property is charged with the mortgage) or be guaranteed by a condition subsequent, etc.

What items, though, can be included in, or be made part of, the aforesaid € 500,000.00 minimum investment?

It should be noted that the Law refers to “investment”, which fundamentally comprises the “agreed price”; some doubt arises, however,  as to whether the costs inherent in the purchase can be regarded as part of the minimum investment amount, whether these are mandatory – taxes such as I.V.A. and Impuesto de Transmisiones Patrimoniales (Transfer Tax), as well as Notary and Land Registry fees – or not legally mandatory, such as the fees payable to lawyers or the commission charged by a real estate agent which, at least for taxation purposes, are considered to be part of the purchase value of the property.

Another important point is the provision that the minimum € 500,000.00 amount may not be the “cause” of the charge or lien.- This seems clear, particularly given that Section 64 of this Act  provides that evidence of the investment made when purchasing a property is provided in the form of a certificate issued by the Land Registry which must reflect the liens on the real property which, according to J. Dominguez Plata, is how “a property becomes expressly subject to such liens and, therefore, <<personal rights not specifically secured, mentions to rights capable of being specifically registered, …>> do not fall within the concept of lien for the purposes of the Mortgage Act”.

This would lead to the conclusion, among others, that a personal loan granted by a third party or by a bank which is not secured by a mortgage or any other in rem right or lien would not, in a literal sense, be included in the requirement of “not being a charge or lien”; in other words, such a minimum investment  of € 500,000.00 may be financed, even by a Spanish bank, provided that repayment thereof is not secured by an in rem lien registered with the Land Registry.

For practical purposes, as the visa is to be ultimately granted by an administrative authority, what matters is that no charge relating to the aforementioned minimum amount must be reflected in the certificate issued by the Land Registry, and a personal loan will obviously not be reflected in such a certificate.

HOW TO PROVIDE EVIDENCE OF A REAL PROPERTY INVESTMENT.

Evidence of purchase of real property must be provided in the form of a certificate issued by the relevant Land Registry containing updated information on the ownership of, and charges on, the property; or, where the registration process has not been completed, a certificate confirming that the registration is being processed in good time together with documentary evidence of payment of the taxes inherent in the purchase.

IMPLICATIONS OF THE STAY VISA AND RESIDENCE AUTHORISATION FOR THE INVESTORS.

A stay (only) visa obtained from the relevant diplomatic or consular office provides valid title to reside in Spain for at least one year, but if a foreign citizen wishes to reside in Spain for a longer period, then they may apply for a specific residence authorisation for investors with validity in the whole Spanish territory (mainland, Balearics, Canary Islands, Ceuta and Melilla).

It must be advised that neither the stay visa nor the residence authorisation allow the holder thereof to “work” in Spain, as a work permit is required to do so.

The following requirements need to be met in order to make an Investor’s Residence Application:

• GENERAL REQUIREMENTS: (i) not to have entered the Spanish territory illegally; (ii) to be at least 18 years old; (iii) not to have a criminal record for crimes considered as such in Spain which have been committed in the applicant’s place of residence over the last five years; (iv) not to be listed as “non-eligible” in a country with which Spain has entered into an agreement in this regard; (v) to have medical insurance with an entity authorised to operate in Spain; (vi) to have sufficient economic resources for themselves and their family during their period of residence in Spain.- It must be noted that this is a residence permit, not a residence and work permit; (vii) to pay the visa processing fee; (viii) the applicant’s spouse, minor children and adult children if they are evidently incapable of independent sustenance, may apply for residency together with the applicant; (ix) to meet all taxation and social security obligations; and (x) to comply with the legal requirements concerning money laundering prevention.
• SPECIFIC REQUIREMENTS: (i) to have previously obtained the aforementioned “Investor’s Residence Visa” and that the latter be in force, or at least expired not more than 90 days before the application; (ii) To have travelled to Spain at least once during the period of authorised residency; (iii) the applicant must prove that they continue to be the owner of one or more real properties with a minimum value of € 500,000.00 by submitting one or several ownership certificates issued by the Land Registry to which the property or properties pertain, which must be dated not more than 90 days before the residency application.

Such an initial Investor’s Residency Authorisation will have a duration of two years, but a further two-year extension may be applied for.

It has been pointed out above that each “applicant investor” needs to invest at least € 500,000.00, which seems to indicate that the investor’s spouse, and even their children, will also need to invest at least € 500,000.00 each.

It has been previously indicated as a GENERAL REQUIREMENT <see paragraph (ix)> that the applicant’s spouse, minor children and adult children in some cases may jointly apply for residency, but a different matter from the application for any kind of residence authorisation is to demand as a SPECIFIC REQUIREMENT to apply for a Significant Investment Visa or Residency Authorisation that each applicant make an individual investment of at least € 500,000.00.

It is thus inferred from the literal wording of Section 62 of the Act, entitled “General Requirements for Stay or Residency”, which says: “without prejudice to providing evidence of the specific requirements for each visa or authorisation…”. Section 63 of the Act, on its part, describes the specific requirements to apply for a Stay Visa or, where applicable, an Investor’s Residence Authorisation, the main one being a “significant capital investment amounting to at least the minimum sum established for each of the instances envisaged by Law”.

It is thus inferred from the literal wording of Section 62 of the Act, entitled “General Requirements for Stay or Residency”, which says: “without prejudice to providing evidence of the specific requirements for each visa or authorisation…”. Section 63 of the Act, on its part, describes the specific requirements to apply for a Stay Visa or, where applicable, an Investor’s Residence Authorisation, the main one being a “significant capital investment amounting to at least the minimum sum established for each of the instances envisaged by Law”.

This may seem excessive – and the undersigned does believe it is – but I consider this to be the most accurate interpretation of the wording of this rule, albeit this is obviously open to interpretation.  It will therefore be necessary to wait for the future development of these precepts as a regulation in Spain or, at least, to see the practical application of this Act.

As a conclusion of this first instalment, real estate investments as a way to obtain this kind of visa or residence authorisation is targeted at persons with a high economic capacity who will aid the national economy with their investment as opposed to becoming a burden to the State, as their economic resources must be enough to allow them to reside without “working” in Spain and without becoming a burden to the Social Security.

Such an investment, however, may also be “non-productive” in the sense that the real property may be merely a personal residence which does not yield any profit for the investor, but it may also be a productive investment insofar as the property or properties may be dwellings which are to be rented out or used towards other permitted economic activities, business premises, land, accommodation units to be operated in the tourism sector, etc.

In future instalments we will look at the stay and residence visas and authorisations for those who are going to carry out an entrepreneurial activity in Spain – the so-called “emprendedores” (entrepreneurs) – involving an investment in companies, public debt, bank deposit accounts, etc.

But we will also analyse an amendment which is of utmost importance, i.e. residence authorisation with more than six months’ absence periods per year of the authorised person (entrepreneur or employee) where their activities are carried out abroad but their centre of operations is based in Spain. Please note that, until now, every person with authorised residency in Spain is, in principle, a fiscal resident in Spain, but those who, without a residence authorisation (i.e. in the case of non-EU citizens), do not reside in Spain six moths and one day each year but their vital interests are in Spain (i.e. their spouse, children, etc do reside in Spain for such an annual period), can also be regarded as fiscal residents by the Public Treasury and will therefore have to pay their personal taxes in Spain in respect of “all their worldwide income”, unless they prove that their economic interests are fundamentally located outside Spain and they do not reside in our country more than 182 days each year. If the conclusion were possible that a person who has a residence authorisation and does not reside in Spain more than six months per year is not a fiscal resident in Spain, even if their spouse or children do, this could be a measure of great relevance to promote real estate investments in Spain.

Francisco J. Lizarza – Spanish Lawter. October 2013.