One of the issues that generates the most problems when receiving a home by inheritance or donation is the settlement of the inheritance and gift tax, especially when the valuation of these has not been carried out correctly. However, inherited or donated properties are not the only ones that can come with debt. New owners may also be forced to have to assume the payment of the Real Estate Tax (IBI).
As Raúl Gómez, lawyer and collaborator on the “Onda Cero” program ‘It’s Not Hours’, warns, “the purchaser of a property is responsible for possible non-payments of the IBI for the two years prior to the purchase.” Something that is due to the fact that the debt is linked to the home, not to the previous owner. Specifically, if it responds to a debt accumulated in the last four years, forcing the new owner to liquidate it to avoid seizures.
The Real Estate Tax, better known by its acronym, IBI, is defined in articles 60 and 61 of Royal Legislative Decree 2/2004, of March 5, which approves the consolidated text of the Law Regulating Local Treasury, as a “direct tax of a real nature that taxes the value of real estate.” This must be paid those who appear as owners of the property as of January 1.
The new owner becomes subsidiary responsible
However, it also specifies that, when the property is sold, the debt due to non-payment of the IBI may be passed on to the new buyer. This fact causes that, according to the General Tax Law in which the tacit legal mortgage is definedas the lawyer explains.
This “establishes the mechanism by which taxes levied on registered assets, such as the IBI, automatically enjoy preference over other creditors.” for the fiscal years of the current year and the immediately preceding oneincluding as subsidiary responsible parties the possible acquirers or purchasers of those assets,” says the lawyer.
Specifically, the tacit legal mortgage becomes a guarantee for the Public Administration to collect the percentage referring to the IBI. Therefore, as Raúl Gómez recommends, when you are thinking about purchasing a home, it is iimportant to ensure “that you do not owe any amount for Real Estate Taxes”, as these may end up being claimed from the new owners.
It must be demonstrated that the debt cannot be collected from the person who originated it
However, precisely in this subsidiary nature lies the nuance to establish the obligation or not of the previous owner. Well, as the lawyer assures, “the main debtor is always the seller if there are means to demand him.” So the debt would only fall on the buyer in the event that “the debt cannot be collected from the person who originally generated it“.
Therefore, the most recommended thing by lawyers when carrying out the purchase of a property is to request the debt certificate from the City Council before closing the agreement. This will show if the seller previously settled the IBI or if there are other types of debts linked to the home. If so, it is necessary to make a formal agreement in which the previous owner is responsible for the pending payment.
“The buyer will respond only to the years indicated in the tacit mortgage”, Raúl Gómez
Although we must also take into account the IBI prescription, whose general term is four years according to article 66 of the General Tax Law. As the lawyer explains, following this provision, the Public Administration can demand payment within said period, even from the new owner. However, “many interpretations understand that The buyer will respond only to the exercises indicated in the tacit legal mortgagethat is, the current year and the immediately preceding one”.
This makes it difficult for the Public Administration to collect such non-payments after the two years indicated. However, to avoid facing this type of unforeseen expenses, what the lawyer recommends is to verify the debts linked to the property before making the purchase. “So now we know, let’s be careful with these issues because In life there are only two things that are certain: death and taxes“concludes Raúl Gómez, lawyer and collaborator in ‘No son Horas’.