How can we be sure that the purchase or sale of a property has a serious and interested seller or buyer behind it?

Purchase and sale of a property to an individual (Part I)

How can we be sure that the purchase or sale of a property has a serious and interested seller or buyer behind it?

If you want to buy or sell a property but you want guarantees that the seller or buyer is serious and formal, keep reading because we are going to comment on the 3 preparatory contracts of the Spanish legal system that give us guarantees in sales and purchases.

To ensure as much as possible in the sale and purchase of a property, there are 3 options:

1ST: ARRAS. These are clauses that are inserted in a contract of sale and which, therefore, transfer ownership. Within the arras, we can distinguish: 

  • Arras penales (penalty deposits): they operate as a penalty clause. In the event that the seller defaults, the agreed amount will be returned to the buyer and, being similar to a penalty clause, claims can be added, such as compensation for damages.

-Arras confirmatorias (confirmatory clause): they only confirm the existence of a contract.

Arras penitenciales (penitencial clause).These are the arras clauses included in the Civil Code. It involves the buyer and seller disengaging from the contract with a series of consequences: if the buyer disengages, he loses the amount of the deposit; if it is the seller, he loses the amount received and must also pay an additional amount equal to that received. 

How much deposit should be paid? Approximately 10% of the sale price of the property. 

2ND: RESERVATION CONTRACTS. This preparatory contract obliges the seller NOT to market the property, i.e. to withdraw it from the market. This ensures that while other steps are being taken, such as finding a mortgage, the house will not be taken over by someone else.

3RD: CONTRACT WITH OPTION TO BUY. Contract by which one of the parties grants the other, for a certain period of time and under certain conditions, the power to decide whether or not to enter into the contract of sale. In this case it is not necessary to deliver the price of the property, unless otherwise agreed, in order to exercise the option to purchase; it is sufficient to state that it is going to be entered into. 

It should be borne in mind that each option will depend on the specific needs of the buyer or seller, and they are even combinable options. 

These “pre-contracts” can be made by the individual, but we always recommend being advised by a specialised lawyer. They may seem very simple, but poorly drafted, they can have very unpleasant legal and economic consequences.

If you would like us to help you prepare for the purchase or sale of your property, do not hesitate to contact us. We will be happy to help you. 

MARÍA MANCHA MANCILLA
R&MORENO ABOGADOS 

C/ Ramón Gomez de la Serna, 22  Ofic 503
29600 MARBELLA  – Málaga
Tfno. +34 658 813 200 – 951 469 361
info@rmorenoabogados.com