The arras is the point in a Spanish purchase where trust is won or lost. It is a private contract, you put down a deposit of around 10 percent, and from that moment walking away costs you real money. So everything worth checking, you check before you sign it.
What the arras actually is
A contrato de arras is a binding pre-sale agreement between buyer and seller. It fixes the price, the parties, what is included in the sale, and a deadline to complete in front of the notary. The deposit, customarily around 10 percent of the price, counts toward what you owe at completion.
The three kinds, and why the difference matters
Not all arras are the same, and the type decides what happens if the deal falls apart:
- Arras penitenciales let either side pull out on purpose. If you walk away you lose your deposit; if the seller walks away they owe you double it. These are common in resale.
- Arras confirmatorias are stricter. Neither side has a clean exit, and if one breaks the deal the other can demand it goes ahead, plus damages.
- Arras penales add a fixed penalty on top.
Here is the part most buyers do not know: Spanish courts assume the stricter, confirmatoria type unless the contract clearly says otherwise. So “we can just forfeit 10 percent and walk away” is not automatic. It depends entirely on the wording, which is exactly why your own lawyer should read the arras before you sign it.
What to confirm before the deposit
Before any money moves, this is the homework, and your lawyer leads it:
- The seller is the registered owner, and everyone named on the deed is selling.
- There is no mortgage, debt or embargo attached to the property, or a clear, written plan to clear it at completion.
- The home has its licences and habitability in order (in this region that is the segunda ocupación) and a valid energy certificate.
- Community fees and the local property tax (IBI) are paid up to date.
- Exactly what is included: the fitted kitchen, the furniture, the parking space, the storage room. Put it in writing.
If you are financing the purchase
A deposit you could lose is a real risk while your mortgage is still unapproved. Two things protect you: get a firm pre-approval from the bank before you sign the arras, or have your lawyer add a clause making the purchase conditional on the mortgage, so your deposit comes back if the loan is refused. More on non-resident mortgages.
Where we sit
We prepare the arras and coordinate both sides toward a deadline everyone can meet, and if you do not have a lawyer, we introduce you to an independent one. What we do not do is decide the legal questions for you. The arras is binding, and the person advising you on it should answer to you alone.