Lucía lives in Madrid and is about to buy a flat in Marbella for €540,000. The sellers are a married couple: he, Hans, is German and has been living in Marbella for twelve years; she, Claire, moved to Dubai in 2024 for work. The notary's office has asked her whether she is going to withhold the 3 %, and Lucía does not know what to answer. The answer depends on a single thing, the tax residence of each seller on the day of the escritura (the public deed of sale), and in her case it produces a Modelo 211 on half the price: €8,100.
Four conditions that must all be met at once
Article 25.2 of the Non-Residents Income Tax Act requires Modelo 211 to be filed when these four circumstances coincide:
- There is a property located in Spain. A home, a parking space, commercial premises, a plot or rural land. A property has no nationality: what matters is where it is.
- There is a transfer for consideration. The law calculates the 3 % on the agreed consideration. In a sale or an exchange there is one; in a gift or an inheritance there is no price to apply it to.
- The transferor is not tax resident in Spain. Individual or entity, it makes no difference.
- The transferor acts without a permanent establishment. A non-resident seller operating in Spain through a permanent establishment follows other rules and is looked at separately.
Note what is not on the list. It does not matter who is buying: a resident individual, a company, another non-resident. It does not matter how much, nor whether the seller makes a gain or a loss on the sale. And the seller's passport does not matter. The page on Modelo 211 explains the whole picture; here we go to the question of whether it applies to you.
Tax residence is not nationality
The most expensive confusion is thinking that "foreign" means "non-resident". Hans is German, but if he spends more than 183 days a year in Spain or has the centre of his interests here, he is tax resident in Spain, and his share carries no withholding. The other way round, a Spaniard who has lived and paid tax in Switzerland for years is non-resident, and whoever buys from him has to withhold.
The reasonable proof is the certificate of tax residence in Spain issued by the Agencia Tributaria, the Spanish tax agency, covering the period of the sale. The seller's statement in the escritura helps, but it does not replace that document. How it is checked, and what to do if it arrives late, is in checking the seller's residence, and the underlying criteria in who is non-resident for Modelo 211 purposes.
Common situations, resolved
| Situation | Is there a Modelo 211? | What the 3 % is calculated on |
|---|---|---|
| British seller living in London | Yes | The whole price |
| Spanish seller tax resident in Switzerland | Yes | The whole price |
| Foreign seller resident in Spain who provides a certificate | No | — |
| Two co-owners, one resident and the other not | Yes, partial | The part of the price belonging to the non-resident |
| Foreign company without a permanent establishment | Yes | The whole price |
| Contribution of the property to set up or increase the capital of a resident company | No: the law expressly excludes it | — |
| Gift or inheritance from a non-resident | There is no price to withhold from | Other taxes apply, not Modelo 211 |
Lucía's sums
Hans and Claire own the flat 50/50. Hans provides a certificate of tax residence in Spain for this year. Claire cannot, because her residence has been in the Emirates since 2024.
- Total price: €540,000.
- Claire's share: 540,000 × 50 % = €270,000.
- Withholding: 270,000 × 3 % = €8,100.
- Payment at signing: €270,000 to Hans and €261,900 to Claire.
- Modelo 211: one form, in Lucía's name as acquirer, identifying Claire as the non-resident transferor, within the month following the escritura.
If Lucía withheld 3 % of the €540,000, she would be keeping €8,100 of Hans's money for no reason, and Hans would have to recover it some other way. If she withheld nothing, the statutory charge that the law places on the property would fall on the home she has just bought.
A two-minute check
- Is the property in Spain? If not, there is no Modelo 211.
- Are you paying a price or giving something in exchange? If it is a gift or an inheritance, there is no Modelo 211.
- Has each seller proved tax residence in Spain with a certificate? For each one who has not, there is a Modelo 211 for that seller's share.
- Is it a contribution to a resident company? Then there is no withholding.
- Are you signing in the next few days? The deadline is one month from the escritura, and it is wise to have the amount set aside from signing.
Why doubt harms the buyer above all
The obligation to withhold belongs to the acquirer. If the seller claims to be resident and turns out not to be, the one who failed to withhold was the buyer, and the law provides that the property becomes charged with payment of the lower of the withholding and the seller's tax. The buyer has done nothing wrong on purpose, but the property is theirs and the charge goes with it.
That is why the conversation about residence is had at the arras stage, when the deposit contract is signed, not at the notary's. The reasonable course is to agree that the seller will deliver the certificate in advance and that, if it does not arrive, the 3 % will be withheld. We explain it with the clauses in the 3 % in the arras contract.
A residence certificate from two years ago says nothing about where the seller resided on the day of the escritura. Ask for one covering the period of the sale, and if the seller moved recently, handle the case with care: a change of residence in the middle of the year can give results that are not intuitive.
Borderline cases worth a second look
Siblings selling the house they inherited
Three siblings inherit their parents' flat in Córdoba and sell it for €180,000. Two live in Spain; the third has been working in Canada for years. The buyer withholds 3 % only on the third belonging to the non-resident sibling: 60,000 × 3 % = €1,800. If the escritura does not make clear which part of the price belongs to each seller, it gets argued over at the notary's office, so it should be stated.
A buyer who is also non-resident
A buyer living in Ireland who buys from a seller living in Sweden has exactly the same obligation as a buyer from Valencia. They will need an NIE, the tax identification number for foreigners, to file Modelo 211 and, almost always, a representative in Spain to make the payment.
Exchanging a plot for future flats
When a non-resident hands over a plot in exchange for homes that are yet to be built, there is consideration even though there is no money, and the 3 % is calculated on the value of what the non-resident receives. These are transactions worth reviewing before signing, because the valuation of what is delivered is the base.
What Modelo 211 does not settle
Filing Modelo 211 does not close the tax side of the sale. The non-resident seller still has to file their own Modelo 210 for the gain, within the three months following the end of the buyer's period, and the 3 % paid in is deducted there; we summarise it in the deadlines of a non-resident's sale. The plusvalía municipal, the local tax on the increase in land value, runs separately and is paid, as a general rule, by the seller, although when the seller is non-resident the buyer can be made to answer for it before the town hall as a substitute taxpayer. They are three different taxes around one and the same escritura.
If you are about to buy and are not sure whether the seller is resident, tell us in the Modelo 211 withholding form before signing the arras: that is the moment when things can still be decided calmly.