Ashurst Madrid October 2013

Obtaining Spanish residence through the acquisition of real estate assets

Regulation
Law 14/2013, of 27 September, for the Support of Entrepreneurs and its Internationalisation (the "Entrepreneurs Act"), which entered into force on 29 September 2013, includes legislation which allows real estate investors to obtain legal residence in Spain through the acquisition of real estate assets in Spain under certain conditions. This new legislation does not apply to citizens of the European Union or third country citizens who already have the right to free movement and residence within the European Union according to European Union regulations. Applications should be made at Spanish diplomatic missions and consular offices, which are also competent to grant the Residence Visa according to the European Regulations 3 in force. Applications are meant to be processed and notified within ten business days, although in practice they tend to take longer. Residence Permits Investors who wish to reside in Spain for more than one year may apply for a Residence Permit (autorizacin de residencia). The requirements for obtaining a Residence Permit are the following:

Residence Visas or Permits for investors

Residence Visas The new legislation states that Residence Visas can be requested by non-resident investors who hold an investment in real estate assets in Spain with a value equal to or higher than EUR 500,000 per applicant. The investment must be free of any charges or encumbrances (i.e. mortgage) up to the above minimum value of EUR 500,000. Any excess investment above this threshold may be subject to charges. The investment may be made through a company 1 as long as the non-resident investor applying for the Residence Visa holds the majority of the company's voting rights (either directly or indirectly) or has the capacity to appoint or dismiss the majority of the members of the company's management body. Investment in real estate assets is evidenced by means of a certificate issued by the Land Registry 2. The Residence Visa will authorise residence in Spain for at least one year.
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the applicant holds a current Residence Visa (or one which has expired within the last ninety calendar days); the applicant has travelled to Spain at least once during the period in which the Residence Visa was in force; proof that the applicant still owns the real estate assets which permitted the granting of the Residence Visa. This is evidenced by a new Land Registry Certificate issued no earlier than ninety calendar days prior to the application for the Authorisation for Residence); and fulfilment of all applicable tax and social security obligations.

The Residence Permit will have a duration of two years. Once this term has elapsed a renewal may be applied for provided that the conditions which determined its grant still exist 4.

Regulation (CE) 810/2009 of the European Parliament and the Council of 13 July 2009 (Visa Code) and Regulation (EU) 265/2010 of the European Parliament and the Council of 25 March 2010. Although renewals may be obtained even if the applicant does not habitually reside in Spain (i.e. he is absent for more than six months a year), in the event that the investor wants to obtain a Long-Term Resident Permit (which authorises the holder to reside and work in Spain under the same conditions as Spanish citizens) or Spanish citizenship, then continuous residence in Spain must be proved for the purposes of obtaining long-term residence in Spain (residencia de larga duracin).

The company cannot be domiciled in a tax haven according to the Spanish regulations. If registration with the Land Registry is being processed at the time the application is filed, the certificate containing the filing for registration (asiento de presentacin) together with evidence of payment of the taxes associated with the real estate acquisition will suffice.

AUSTRALIA BELGIUM CHINA FRANCE GERMANY HONG KONG SAR INDONESIA (ASSOCIATED OFFICE) ITALY JAPAN PAPUA NEW GUINEA SAUDI ARABIA SINGAPORE SPAIN SWEDEN UNITED ARAB EMIRATES UNITED KINGDOM UNITED STATES OF AMERICA

The Residence Permit is granted by the Directorate General of Migration (Direccin General de Migraciones).

What does residence entail?

No right to work or carry out economic activities A Residence Visa or Permit does not imply an authorisation to work or carry out any economic activity in Spain; these have to be specifically authorised according to the applicable legislation 7. Limited access to the public health system (seguridad social) Those authorised to reside in Spain will only have access to the public health system where: (i) their annual income is below EUR 100,000; and (ii) they do not hold any form of health cover. Therefore, since one of the general requirements for obtaining a Residence Permit or Visa is to be the beneficiary of a public or private health insurance policy, it is unlikely that a resident investor would have access to the Spanish public health system 8. Access to public education According to Spanish regulations, foreigners below 16 years of age will have the right and the obligation to access a basic, free and mandatory education 9. Foreigners who are older than 16 years of age but less than 18 years of age have the right but not the obligation to obtain additional non-compulsory school education. Residents over 18 years of age also have access to tertiary education.

General requirements
In addition to the above conditions, Spanish legislation contains certain general requirements in order to be able to apply for a visitor's or residence permit which applicants need to comply with. In all cases the applicant must:

be over 18 years of age not reside irregularly in Spain; not have a criminal record either in Spain or in the countries in which the applicant has resided in the five years prior to the application (provided such foreign criminal records refer to criminal offences listed as such in the Spanish Criminal Code); not be listed as persona non grata in countries with which Spain has signed an agreement in this regard; have public or private health insurance with an insurance company authorised to operate in Spain; have sufficient economic resources for himself and the members of his family for the duration of their visit/residence in Spain; and pay the fees for processing of the residence visa or authorisation for residence.

The applicant's spouse and children below 18 years of age (or above 18 years of age but incapable of tending to their own needs due to health problems) can also apply at the same time. The diplomatic missions and consular offices which receive the relevant applications will carry out checks with the Directorate General of the Police (Direccin General de Polica) in order to determine whether the applicant could represent a security risk 5. In addition, obligations arising from anti-money laundering regulations and financing of terrorism 6 and tax and social security obligations must be observed.

Full citizenship rights: long-term residence and Spanish citizenship

Residence Visas and Permits fall within the concept of temporary residence which provides limited rights to their holders (as described above). Full citizenship rights can be acquired either by: Long-Term Residence Long-Term Residence authorises residence and work in Spain under the same conditions as Spanish citizens. In order to obtain a Long-Term Residence Authorisation, five years' continuous residence is required. Permanent residence means residence without absences of more than six consecutive months

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Organic Law 4/2000, of 11 January (Ley de Extranjera) and applicable regulations. However, under certain conditions, it would be possible to reach an arrangement with the relevant Autonomous Region (Comunidad Autnoma) to access the public health system by paying certain amounts (the so-called "convenio"). Parents must provide evidence that their children are receiving the mandatory education in Spain when applying for renewal of their Residence Permits.

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If the Directorate General of the Police does not respond within seven days, the applicant will be deemed not to pose any risk. Law 10/2010, of 28 April.

and/or absences exceeding a total of ten months during the five-year residence period (twelve months if the absence is for work-related reasons).

Spanish citizenship Spanish citizenship requires at least ten years' continuous residence in accordance with the requirements set out in the Spanish Civil Code.

Contact
Cristina Calvo Partner and head of the Real Estate department T: +34 91 364 98 46 E: cristina.calvo@ashurst.com Ismael Fernndez Antn Partner in the Real Estate department T: +34 91 364 98 53 E: ismael.fernandez@ashurst.com

This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this publication to specific issues or transactions. For more information please contact us at Alcal, 44, 28014 Madrid T: +34 91 364 9800 F: +34 91 364 9801/02 www.ashurst.com. Ashurst LLP and its affiliates operate under the name Ashurst. Ashurst LLP is a limited liability partnership registered in England and Wales under number OC330252. It is a law firm authorised and regulated by the Solicitors Regulation Authority of England and Wales under number 468653. The term "partner" is used to refer to a member of Ashurst LLP or to an employee or consultant with equivalent standing and qualifications or to an individual with equivalent status in one of Ashurst LLP's affiliates. Further details about Ashurst can be found at www.ashurst.com. Ashurst LLP 2013 Ref:31108432 04 October 2013