Lease or purchase moorings

Lease or purchase moorings

Date: 11 November 2019 Category: Superyacht & Marinas News

Source and subject matter expert: 


Scenario based of mooring in Spain:


A. Preferential right of use of a mooring

B. Land registry of a mooring through a Public deed

C. Taxes 



A. Preferential right of use

(Source and information. written by the specialist in Yachting Law : Nauta Legal Abogados, Barcelona)


The "purchase of a mooring" requires knowing that the period of enjoyment of the right on it is not permanent, as well as the terms of use of it which may vary from one seascape to another.


One of the issues which a yacht owner must solve is the place where to moor it. Clearly, this is an important issue given that sometimes it is not easy to find the adequate mooring in the adequate place. Once decided where to moor, depending on supply, it must be decided between the purchase of a preferential right of use or a lease. Leasing may be a good decision since it is not necessary to perform a down payment and it allows the flexibility to change of marina, if wished. If the final decision is the acquisition of a preferential right of use it is important to know exactly what we are purchasing because it can lead to disappointments. In this article, we will discuss some of the basic aspects which a buyer should know and which should be taken into consideration when taking the decision of purchasing a mooring.


 

What should be known?

 

What is acquired when purchasing a mooring?

 

When a "mooring is purchased", what is really being acquired is the "preferential

right of use" of it. That is to say, what is obtained as a

holder is the right to moor a yacht in the mooring for a period of time which

will be fixed in the purchase contract. Generally, the right extends until the end of the

"administrative grant" but it can also be for a shorter period. The

conditions governing the right of usage are normally regulated in the

assignment contract subscribed between the concessionaire and the right holder

and in the regulation of exploitation and use of the marina. Both the assignment

contract of preferential right of use and the exploitation regulation and use

of the marina should comply with the assignment contract and the effective

legislation on the subject.

 

What is an administrative grant?

 

Moorings are located in what is called "demanio

maritimo terrestre", that is to say, in the sea shore. In Spain this area

has public nature and is owned by the State. In order for an individual, for

example, the management company of a marina, to be able to construct and

operate a port, it is necessary that the State grants him a

concession. Concessions are granted for a number of years and the marina

manager has to pay a "fee" for it to the State. The port may be

managed by a private company through a concession or directly by the

Administration. The concessionaire can sell the use of the port moorings to

different users through an assignment contract of preferential right of use on moorings.

 

How are the rights and duties of the mooring owner

regulated?

 

Before purchase it is important to carefully analyze

which are the rights and duties which involve the mooring tenure which will

appear reflected in the assignment contract concluded between the

concessionaire and the user and in the exploitation and use of the port

regulation. Between the existing rights it is very important to know exactly if

there is any possibility to lease or to lend to third parties the moorings, to

sell them without limitations and the tolerances in length and beam of the

vessel that occupies them. Within the duties, the most important one is without

doubt the payment of the expenditure of maintenance and utilities. It is

important to be able to have a certain control over them.

 

What happens when the grant ends?

 

As we said, administrative grants which the State gives

to entities which exploit marinas are granted for a specified period of time.

Once the concession period comes to an end, the facility reverts to the State

without the preferential right of use holder preserving any right. That is to

say, the right is strictly maintained until the concession ends. Some regional

regulations allow the preferential right of use holder to acquire again the

right of use paying a certain price.

 

Concluding remarks

 

Having established the foregoing considerations,

bypassing the place where the marina is, which will affect the price without

doubt, the determination of the price to pay will be conditioned by:

 

1.Length and beam of the mooring. Note that although

there is a certain tolerance in the length, with respect to the beam the

tolerance is usually more restrictive.

 

2.Period of concession remaining. As the end of the

concession comes to an end the price is lower. Sometimes it may be interesting

to purchase a mooring when the concession is close to end in order to ensure the

possibility of opting for it when it is renewed.

 

3.Maintenance and administrative expenses of the mooring.

Normally the preferential right of use holder must face the expenses which the

concessionaire attributes to him.


It is of vital importance that the buyer is aware of all of these aspects. It is also essential to know the rights which the mooring ownership confers to him regarding the permitted uses thereof. As we said, there are some marinas in which the preferential right of use holder has the possibility of leasing the mooring to third parties forbidden, so therefore if it is not occupied with their vessel, it may be occupied by one designated by the port without being entitled to any compensation.

Others, require that the mooring holder must be the same that the vessel which occupies it, which can be a problem when a same beneficiary acquires them with different entitlements.


We, Direct Berth Brokerage are pleased to support you in guiding you to the subject matter expert for any legal nautical questions.


This information is from the following Source & Subject matter expert:

Nauta Legal Abogados, Barcelona






B. Land registry of a mooring through a Public deed

(Source & Information: Internet - Spanish Property Insight)


Next to the option of a preferential right to use on moorings there can be a requirement for opting for a public deed which involves a notary which will register the catestral in the land registry.

In the first instance it is the Title Deeds (Escritura) that confirms you as the owner and therefore guarantees your property rights, but as the information recorded on the land registry is more detailed and includes such elements as the boundaries of your property, its size and dimensions, ownership history and any outstanding charges that may be attached to it, this is an important additional source of legal security.

The mooring needs to have a specific catestral number. The cadastral reference is an official and obligatory identifier for real estate in Spain. It is an alphanumeric code 20 characters long that Cadastre Office assigns to each property in order to accurately record them in the cadastral map of properties.



C. Taxes

Please be advised and check all tax implications as there are various taxes that are required:

(Source & Information: Internet - Spanish Property Insight)


VAT (IVA)

This is a national tax, so VAT is the same wherever the property is located 


Duty Stamp tax

These taxes apply for moorings being sold for the first time (never previously occupied), or for commercial properties and plots of land. 

The Stamp duty (known as AJD) is 1% of the price of the purchase, but might go up in some regions, so be sure to check on the latest rate. Both VAT and Stamp Duty are paid by the buyer


Spanish Transfer Tax (Impuesto sobre Transmisiones Patrimoniales ITP): 

This tax applies if the property is deemed to be a second or posterior transfer (i.e. not the first time a mooring is bought), and is paid by the buyer. In this scenario there is no VAT to pay, and stamp duty is already included in this tax.

It all depends if at purchase ifs IVA or ITP need to be paid. This is pending if the seller is a private person or a company that has a subsidiary in Spain or not 

The Transfer Tax rate is ceded to the autonomous regions, who can choose to apply the general rate, or their own rate.

The general rule of ITP is 8%- 11%, pending on the purchase value 



IMPORTANT NOTE:

It is the responsibility of the reader to check the accuracy of the above provided information. We at DIRECT BERTH only provided this as indication and as service. We strongly advice to check with a subject matter expert when dealing with above, especially on the tax implications as they could vary case by case.

We are happy to guide you with these matters when appropriate.