Data Centers: Legal Keys to Investing in the New Star Asset of the Real Estate Sector

Data centers have become one of the most coveted assets in the real estate market. They are the infrastructure that makes cloud computing, artificial intelligence, streaming, and e-commerce possible, and their demand continues to grow. Spain has positioned itself as a strategic destination for these investments, with Madrid, Catalonia, and Aragon playing a particularly prominent role, where connectivity, energy, and regulatory stability converge.

However, investing in this type of asset is not comparable to acquiring an industrial warehouse or an office building. The legal and technical aspects involved are complex and require a cross-cutting approach, combining real estate law, urban planning, energy, telecommunications, and taxation.

1. The Right Land: An Essential Starting Point

Before investing, it is advisable to confirm that the chosen land legally permits the establishment of a data center. Although they are often equated with industrial use, not all urban development plans explicitly include them. In some cases, they fall under technological or advanced services uses, which may require permits or modifications to the planning regulations.

Furthermore, compliance with urban planning regulations is not enough. Electrical availability and digital connectivity are crucial: a data center without sufficient power or redundant access to fiber optic networks is not viable, no matter how attractive the plot of land may be.

2. Enhanced Due Diligence: Beyond the Deeds

The legal review prior to purchase or investment must be more thorough than usual. It's not just about analyzing ownership or encumbrances, but about integrating critical technical aspects:

• Contracted electrical power and expansion capacity.

• Easements and access or infrastructure limitations.

• Compatibility of the activity with environmental and telecommunications regulations.

• Urban planning, construction, and operating permits.

These elements can seriously affect the operation and future value of the asset and must be identified before closing the deal.

3. Ownership and Lease: Different Models with Legal Implications

The business model also influences the legal structure.

• In direct ownership, the investor builds and operates the data center.

• In a sale and leaseback, the technology operator sells the property and leases it back to continue using it.

• In leasing models, one or more clients rent space and services in the same data center.

These schemes combine elements of leasing and service provision, which affects indirect taxation (VAT, Transfer Tax and Stamp Duty) and liability in case of failures or interruptions. Therefore, it is crucial to precisely define the risks assumed by each party and the compensation mechanisms.

4. Sustainability and European regulation: a new layer of obligations

The European regulatory framework is moving towards energy efficiency and environmental transparency. The Energy Efficiency Directive (2023/1791/EU) will require data centers to report on their energy consumption, emissions, and sources, which will directly impact construction and operating costs.

Added to this is the dimension of physical security and cybersecurity. A failure in the infrastructure can lead to indirect liability for the owner towards clients or even third parties, making it essential to strengthen contracts, insurance policies, and maintenance protocols.

Taxation and Corporate Structure: The Legal Strategy Behind the Investment

Tax structuring must be planned from the outset. Data centers can be managed through special purpose vehicles (SPVs) or integrated into other types of companies (REITs, etc.) depending on the type of investor and the project's purpose.

The treatment of VAT, property tax, construction tax, and even corporate income tax will depend on how the relationship between owner and operator is structured, as well as the predominant use of the property. In international projects, transfer pricing regulations and the taxation of intragroup royalty or service flows may come into play.

We can see, then, that data centers are already a new pillar of the real estate market, and their growth seems unstoppable.

But they also present a multidimensional legal challenge, requiring the anticipation of risks, the coordination of disciplines, and the adaptation of legal and tax structures to a business model that is still evolving.

In this context, specialized advice—capable of integrating real estate law, urban planning, energy, technology, and taxation—will be key to transforming a real estate opportunity into a solid and sustainable long-term investment.