When to hire a lawyer to buy a home in Spain: before the reservation or the arras

You have found a home you like and you are asked to pay a reservation to take it off the market. The amount looks small next to the purchase price, and the deed is still a long way off.

That first document deserves attention. It can create obligations, deadlines and financial consequences that shape everything that follows.

The most useful moment to instruct legal advice is usually before signing a binding offer, a reservation or arras, and before handing over money. That way you can understand their effects and propose terms before accepting them.

The Consejo General del Notariado also advises obtaining information before signing documents or making payments.

Source: Consejo General del Notariado — Buying a home

Why waiting for the deed is a mistake

By the time the notary appointment arrives, the price, the payment schedule, the allocation of costs and the consequences of default may already have been agreed.

The deed is not necessarily the first moment at which obligations arise. Article 1450 of the Spanish Civil Code provides that a sale becomes binding on both buyer and seller once the thing and the price have been agreed, even if neither has yet been delivered.

Contractual obligations and the transfer of ownership are different questions.

Source: Spanish Civil Code — Article 1450

The earlier review should therefore focus on what you are accepting at each stage, rather than trusting that everything can be changed at the end.

Before the reservation: identify what you are accepting

The word “reservation” can be used for documents with very different content. Some regulate a temporary withdrawal from the market; others carry wider commitments.

The analysis published by the Consejo General de la Abogacía Española explains that the classification of the agreement depends on its content, not only on the name chosen.

Source: Abogacía Española — Preparatory contracts for the sale of property (analysis article)

Before paying, it is worth clarifying:

• Which property and annexes are reserved.
• Who signs and with what authority.
• Who receives and holds the money.
• Whether the seller’s acceptance is required.
• How long the commitment lasts.
• In which cases the amount is returned.
• What happens if the documents reveal an issue.
• How the reservation relates to the later contract.

A small amount does not mean a small commitment.

Before the arras: understand the consequences

Not every arras allows you to walk away by losing the deposit or by returning it doubled.

Arras are the sum a buyer pays the seller as a deposit towards the price. The Notariat’s guide explains that the most common are confirmatory arras, given as a sign that the contract is concluded, and that arras can only be penitential, with the consequence of losing them or recovering them doubled, where that is expressly agreed.

Source: Consejo General del Notariado — What arras are

Article 1454 of the Spanish Civil Code sets out the mechanism by which the buyer loses the arras or the seller returns them doubled. Its application must be analysed against the agreement and the law that applies, and must not be turned into an automatic rule for any deposit.

Source: Spanish Civil Code — Article 1454

Before signing, ask for a concrete explanation: what happens if you cannot buy, if the seller does not perform, or if a problem with the property appears.

If you need a mortgage, review financing from the start

A bank pre-assessment is not necessarily a final approval. Before committing an amount, it is worth setting out how financing will be treated in the contract.

You can ask for these to be defined:

• The amount of financing required.
• The period for obtaining an answer.
• The documents you will have to provide.
• How a refusal will be evidenced.
• What consequences it will have and how amounts would be returned, where applicable.

Do not assume that any bank refusal automatically allows you to recover the money. The regional law that applies must also be reviewed.

For example, article 621-49 of the Civil Code of Catalonia governs, where it applies, a withdrawal on refused financing, subject to conditions and unless otherwise agreed.

Source: Sixth book of the Civil Code of Catalonia — Article 621-49

What can be prepared before committing money?

Early advice links the outstanding documents to the terms of the purchase.

The scope of this preparation must be agreed with the professional. An initial review can identify what is urgent and organise the full analysis afterwards.

Example: a reservation before the documents arrive

Imagine you are asked to pay €6,000 while the property information is requested.

Before accepting, you can ask for clarity on which documents will be reviewed, how long there will be to review them and what will happen if a relevant issue appears.

The value of advice lies in identifying those terms and negotiating them. A unilateral note or a verbal explanation does not replace an agreement accepted by the parties who are to be bound.

This example does not mean that every reservation is refundable. The answer depends on the document and the circumstances.

What if I have already signed or paid?

You can still seek advice. In that case the analysis must start from the commitments that already exist.

Send the lawyer:

• The complete document, including annexes.
• Proof of payment.
• Advertisements and documents received.
• Relevant emails and messages.
• Information on upcoming deadlines.
• Communications about financing or issues.

Do not treat the money as recoverable or as lost before the transaction has been reviewed. Nor assume that instructing a lawyer suspends the agreed deadlines.

If you need a variation or an extension, prepare it and obtain written acceptance.

How to organise a review with little time

If you are told you must sign immediately, give the professional the exact date and the commitment proposed.

Ask for a distinction between:

• 1. What can be checked before payment.
• 2. The documents that are missing.
• 3. The terms worth negotiating.
• 4. The checks that need more time.

An urgent review must explain its limits. The aim is for you to know what information you have and which decisions remain open.

Frequently asked questions

Must I instruct the lawyer before viewing properties?

Not necessarily. You can start once you have a particular property, or earlier if you need to define how you will buy. What matters is preparing the advice before taking on relevant commitments.

Must arras always be signed?

No. The Notariat explains that the prior arras contract is not obligatory. If it is used, its content must be understood before signing.

Source: Consejo General del Notariado — Buying a home

Can I ask the notary for advice before the arras?

Yes. You can go to the notary before signing or paying. Their advice is impartial; the lawyer you instruct for yourself can review and negotiate from your interests.

Source: Consejo General del Notariado — Buying a home

Can a lawyer change a contract already signed?

A lawyer can analyse it and propose amendments, but these must be formalised through the agreement required. Instructing the professional does not by itself change the existing terms.

Prepare the review before the next signature

Advice is most valuable while you can still decide which terms to accept. If the purchase has already begun, gather the documents and review the next commitment before moving forward.

At MH Legal & Seguros we advise national and international buyers on property transactions across Spain, with service in your language and offices in Dénia, Gandía and Villalonga.

Contact our team at info@mhlegalyseguros.com before signing a reservation, arras or sale contract.