The Arras Deposit Contract Explained for Sellers: Securing the Buyer Before Completion in Spain (2026)

The Arras Deposit Contract Explained for Sellers: Securing the Buyer Before Completion in Spain

When you receive a serious offer on your Spanish property, the next milestone is almost always the contrato de arras — the private deposit contract that locks the buyer in before the final notarial deed (escritura pública). For sellers, this document is where you secure real commitment, take the property off the market, and set the clock for completion. Getting it right protects your position; getting it wrong can leave you stuck with a buyer who walks away, or worse, obligated to sell on terms you didn't fully understand.

This guide walks you through what the arras contract does for you as a seller in Spain in 2026, the three legal variants you'll encounter, the documents you'll need to hand over, and the pitfalls that most commonly catch foreign vendors off guard.

What the Arras Contract Actually Is

The arras (from the Spanish word for "earnest money") is a private preliminary agreement governed by the Spanish Civil Code. It sits between the informal reserva (a small holding deposit paid to the agency) and the escritura pública signed at the notary.

For you as the seller, the arras achieves three things:

• Commits the buyer financially — they hand over a deposit, typically 10% of the sale price, though the amount is freely negotiable.
• Takes the property off the market during an agreed exclusivity window (usually 30–90 days).
• Sets the terms of completion — price, deadline, notary, what's included, and the consequences if either party walks away.

Once signed, the arras is legally binding. It is not "just a formality." Breaching it triggers real financial consequences, which is exactly why it works as a security device.

The Three Types of Arras — and Why It Matters to You

Article 1454 of the Spanish Civil Code recognises the most common form, but Spanish practice actually distinguishes three variants. The type you sign determines what happens if someone backs out — so this is the single most important clause to get right.

1. Arras Penitenciales (Penitential / Withdrawal Deposit)

The default under Article 1454 when the contract explicitly says so. Either party can walk away:

• If the buyer withdraws, they forfeit the deposit to you.
• If you withdraw, you must return double the deposit to the buyer.

This is the most common variant and the one most sellers want, because it gives you a clean, capped exit and a clear penalty if the buyer cools off.

2. Arras Confirmatorias (Confirmatory Deposit)

The deposit is simply an advance payment confirming the sale. Neither party has a right to walk away — if someone breaches, the other can sue for specific performance (forcing the sale) or damages. This is stricter and less flexible.

3. Arras Penales (Penal Deposit)

The deposit acts as a pre-agreed penalty, but the non-breaching party can still demand performance of the contract on top of keeping the deposit. Rare in residential resales, more common in commercial deals.

Practical point: If your contract doesn't specify which type, Spanish courts have historically leaned toward treating it as confirmatoria — which may not be what you want. Always name the type explicitly, and have an independent Spanish abogado (not the buyer's lawyer, not the agency's in-house lawyer) draft or review it.

What Goes Into the Arras Contract

A well-drafted arras should include:

• Full identification of both parties (NIE/passport for foreigners, DNI for Spaniards, or company details and representative powers for an SL).
• Precise property description matching the Registro de la Propiedad — cadastral reference, registry details, and any annexed elements (parking, storage, garden plots).
• Agreed price and payment schedule.
• Deposit amount and the type of arras.
• Completion deadline and the notary office.
• Condition of the property at handover (furnished/unfurnished, inventory annexed).
• Distribution of costs — who pays what (see below).
• Charges and encumbrances — a declaration that the property is free of debts, or a plan to cancel any existing mortgage at completion.
• Suspensive conditions if any (e.g. buyer's mortgage approval) — be very careful with these as a seller.

Documents You'll Need Ready as the Seller

Before signing arras, gather:

• Nota Simple from the Registro de la Propiedad (issued within the last few days).
• Título de propiedad (your original escritura).
• IBI receipts (annual municipal property tax) for the last four years.
• Certificado de eficiencia energética (Energy Performance Certificate).
• Cédula de habitabilidad or Licencia de Primera Ocupación, depending on the region.
• Community of owners certificate confirming you're up to date with HOA fees.
• Utility bills and, if applicable, a certificate of zero debt from the community administrator.
• Cancellation certificate for any existing mortgage, or a payoff figure from your bank.

Buyers — especially well-advised foreign buyers — will ask for all of these before signing. Having them ready shortens your time-to-close by weeks.

Suspensive Conditions: The Seller's Watch-Out

Buyers often ask for the arras to be conditional on mortgage approval. If you accept this, and the bank later declines the loan, the deposit is generally returned and you've lost your exclusivity period for nothing.

If you must accept a mortgage-contingent clause:

• Set a short, hard deadline for the buyer to produce written mortgage approval (e.g. 30 days).
• Require the buyer to demonstrate they have already applied.
• Consider a partial non-refundable portion of the deposit even if the mortgage fails.

For cash buyers, refuse suspensive conditions — the whole point of arras is certainty.

Who Pays What at This Stage

The arras itself doesn't trigger taxes for you, but it does set the framework. In a typical Spanish resale:

• Buyer pays: ITP (Impuesto de Transmisiones Patrimoniales, a regional transfer tax that varies significantly by comunidad autónoma), notary fees, registry fees, and their own legal fees.
• Seller pays: Plusvalía municipal (municipal capital gains on the land value increase), any mortgage cancellation costs, agency commission, and your own IRPF/IRNR capital gains tax on the profit.

Rates, thresholds and the plusvalía calculation change — and vary by region and municipality — so confirm the current figures with your gestor, your abogado, or the Agencia Tributaria before signing anything that fixes cost-sharing.

Non-resident sellers, note: the buyer is legally obliged to withhold 3% of the sale price and pay it to the Agencia Tributaria on account of your capital gains tax. You then reconcile via Modelo 210. Build this into your cash-flow expectations.

Common Pitfalls Sellers Fall Into

• Signing an arras drafted by the buyer's lawyer without independent review.
• Not specifying the type of arras, leaving the default open to court interpretation.
• Accepting a completion deadline that's too long — 60 days is standard; 6 months is a soft option that hurts you.
• Forgetting to annex the inventory for furnished properties, leading to disputes about what leaves the house.
• Underestimating plusvalía municipal, especially on properties held for many years.
• Missing the 3% non-resident withholding in your net-proceeds calculation.

Short FAQ

Can I sign the arras and still accept a better offer? No. Once signed, the property is off the market. If you withdraw under penitenciales arras, you owe double the deposit back.

Can the arras be signed remotely? Yes — by video, courier, or through a power of attorney granted at a Spanish consulate or notary. Many foreign sellers do this.

Does the arras need to be notarised? No, it's a private contract. But a notarised version can be registered against the property under Royal Decree 1093/1997, giving stronger protection — worth discussing with your abogado.

What happens if the buyer just disappears? Under penitenciales arras, you keep the deposit and put the property back on the market. Under confirmatorias, you may also sue for damages or performance.

How long between arras and escritura? Typically 30–90 days. Set this deadline realistically based on the buyer's financing and your own document readiness.

Final Word

The arras contract is your single strongest tool for converting a verbal offer into a real, committed sale. Treat it seriously: name the type, tighten the deadlines, list the documents, and — above all — have your own independent Spanish abogado review every clause before you sign.

Laws, tax rates, regional transfer taxes and municipal plusvalía calculations change regularly and vary by region. Before acting on anything in this guide, confirm the current position with a licensed Spanish attorney, a gestor, or the relevant official body (Agencia Tributaria, your ayuntamiento, and the Registro de la Propiedad).