How to sign a secure deposit contract (arras): clauses and errors to avoid

The deposit contract (arras) is the private document where buyer and seller formalise their commitment to buy and sell a property and hand over an initial payment, usually equivalent to 10% of the agreed price. Although it is not mandatory to sign it before a notary, its legal effects are binding: making a drafting error or ignoring the property's registration status can result in the complete loss of the savings invested or in prolonged litigation.

To ensure this step, prior to the public deed, does not become a source of problems, it is advisable to know the types of deposit contracts (arras) available, the necessary prior document checks, and the essential protective clauses for both parties.

Penitential, confirmatory or penal: what type are you signing

In the Spanish legal system, there are three types of deposit contracts (arras) with radically different implications. If the document does not clearly specify the type or is ambiguously worded, case law usually interprets them as confirmatory:

• Arras confirmatorias (confirmatory deposit contract): constitute an advance payment of the total price and confirm the existence of the contract. If one of the parties withdraws, the other can demand in court the forced fulfilment of the sale or its termination with compensation for demonstrable damages.
• Arras penitenciales (penitential deposit contract) (or withdrawal): regulated in article 1454 of the Civil Code, these allow either party to unilaterally rescind the contract without alleging cause. If the buyer withdraws, they lose the amount handed over; if the seller withdraws, they must return double the amount. They represent the most common type in residential transactions.
• Arras penales (penal deposit contract): function as a punitive clause for non-compliance. The party that defaults loses the deposit or returns double, but the fulfilling party can additionally demand the consummation of the sale if they so decide.

The mortgage clause: how to protect your deposit if the bank denies the loan

One of the most frequent mistakes among buyers is signing the deposit contract (arras) before having the definitive mortgage approval. Financial institutions issue pre-approvals based on credit profiles, but formal approval requires a property valuation and the risk department's approval.

In the current climate, access to mortgage credit demands precision in timing. According to INE's Mortgage Statistics, the average interest rate on residential properties stood at 2.96% in June 2026, after remaining around 2.84% in March 2026 and 2.88% in February 2026. Current rates impose strict solvency filters regarding family debt capacity:

To avoid losing the deposit if the loan is denied, it is essential to include a resolutory or suspensive condition due to financing denial. This clause must stipulate that, if at least two or three credit institutions reject the formal application by providing the corresponding denial certificate, the buyer has the right to fully recover the amount deposited, without penalties.

The risk of valuation discrepancy: real numerical example

The bank calculates the maximum percentage to finance (usually 80%) based on the lower of two values: the price agreed in the sale contract or the official valuation value. According to the General Council of Notaries, the average price recorded in deeds in 2024 reached 1.753 €/m² after 716.183 annual transactions were completed. If you buy a property whose valuation value is lower than the agreed price, a funding gap will arise that you must cover with your own capital.

Essential documentation before transferring the deposit

Never hand over any payment without first verifying the technical and legal status of the property. The seller or intermediary agency must provide:

1. Updated Land Registry extract (nota simple): issued less than 10 days ago. Confirms who holds the real ownership and reveals charges such as previous mortgages not cancelled in the registry, tax liabilities, easements, or embargos.
2. Homeowners' association certificate: signed by the administrator and with the approval of the president, certifying that the property is up to date with ordinary and extraordinary fees, and also indicating if there are approved special levies pending collection.
3. Latest IBI (local property tax) receipt: to corroborate that the IBI is settled and to verify the exact cadastral reference.
4. Certificate of occupancy and energy performance certificate (CEE): mandatory for deed signing in the vast majority of autonomous communities.
5. Building Technical Inspection (ITE / IEE): essential for properties over 45 or 50 years old to ascertain if the building has serious structural deficiencies pending rectification.

Deed signing deadlines and cost distribution in the contract

The document must establish a non-extendable deadline for granting the public deed of sale before a notary. For operations with bank financing, it is prudent to set between 60 and 90 calendar days, allowing for the processing of valuation, binding offer (FEIN), and the mandatory legal period of 10 calendar days for reflection before signing.

Regarding expenses, if nothing is agreed upon, the law applies: the seller assumes the municipal capital gains tax (IIVTNU) and the costs of the notary's original deed, while the buyer covers the notary copies, the registration in the Land Registry, and the Property Transfer Tax (ITP) or VAT. It is advisable to specify in the text whether the legal criteria are followed or if another express distribution is agreed upon.