What is the purpose of the visit protocol (“hoja de visita”) during a property inspection?

What is the purpose of the visit protocol (“hoja de visita”) during a property inspection?

When an estate agent visits a property in Ibiza with a prospective buyer, a protocol of the visit is usually signed, in the Spanish “hoja de visita”. Both the agent and the buyer should be aware of what this protocol is for.

Some real estate agents use the opportunity to impose further obligations on the prospective buyer of the property in this protocol. For example, a typical “hoja de visita” may include a clause that requires the buyer to pay part of the agent’s commission if the sale is successful. Is such a clause valid?

First of all, the visita protocol simply records in writing that a particular property for sale has been viewed by a prospective buyer with an estate agent. In case of doubt, the visit protocol serves as evidence for the estate agent in the later assertion of his brokerage commission.

An example should illustrate this: An estate agent signs a brokerage agreement with the owner of a house in Ibiza. After viewing the property with a prospective buyer who has signed the visit protocol, the seller and the buyer certify the notarised sale behind the estate agent’s back. If the estate agent now asks the seller to pay his commission, he will claim, for example, that he did not give the keys to the property to third parties and that he is the one who showed the property to the prospective buyers. In this case, the real estate agent uses the signature of the actual buyer in the visit protocol to prove his brokerage activities, in order to enforce his claim for payment of the brokerage commission in court, if necessary, in the absence of an agreement with the seller.

However, the mere signing of the visit protocol (“hoja de visita”) by the buyer does not constitute a contractual obligation to the real estate agency and must therefore be distinguished from a brokerage agreement (“hoja de encargo”). The brokerage agreement is usually concluded between the seller and the estate agent, so that only the seller and not the buyer is obliged to pay the brokerage fees. In addition, many courts consider it a misleading practice when a visit protocol contains contractual obligations. It is precisely for this reason that more extensive contractual clauses in the visit protocol are usually considered null and void at the expense of the buyer.

If, exceptionally, the buyer undertakes to pay the brokerage fee because, for example, he is looking for a specific property in a specific location, a brokerage agreement must be signed between the buyer and the broker containing the main contractual terms. Another possibility is that the buyer or seller is obliged to pay the brokerage fee in the private written purchase contract. In this case, the parties cannot claim at a later date that they were not informed of their obligation to pay the brokerage fees, as this obligation already arises from the private contract of sale.

Anyone who hires an estate agent in Ibiza should also be aware of the following: The brokerage contract is not regulated by law in Spain and can be structured differently in detail. As a rule, the seller, as the client in Spain, bears the brokerage fees. In legal practice, however, the brokerage fees are included in the sales price. The broker’s commission is usually 5 % to 6 % of the sales price. Brokerage fees are usually due upon conclusion of the notary contract. For approx. 1 % of the purchase price, the buyer receives legal security through legal advice when buying real estate.