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Spanish arras contract explained: deposit, types and mortgage clause

The arras contract is the binding pre-purchase agreement signed between buyer and seller before the notary deed. It establishes the price, conditions and timeline of the transaction — and locks both parties in. As a non-resident relying on a Spanish mortgage, getting the arras right is critical: a missing financing clause has cost foreign buyers tens of thousands of euros when their mortgage was denied after signing. This guide explains the three types of arras, what each one means for you, and the clauses every foreign buyer must insist on.

By Fernando Hierro
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What is the arras contract

The arras (literally 'earnest money') is a private contract under Spanish Civil Code articles 1124 and 1454. It binds both buyer and seller to the property transaction at the agreed price and timeline. It is signed AFTER you have viewed the property and agreed terms, BEFORE the notary signing where the property formally transfers.

The typical structure: buyer transfers the agreed deposit (held in escrow by a lawyer or paid directly to the seller), both parties sign a contract specifying price, timeline, included furniture, registration data, and any contingencies. The rest of the price is paid at the notary signing on the agreed date.

Crucially, the arras contract is fully enforceable in Spanish courts. Walking away has real financial consequences. For non-residents the stakes are higher: you typically cannot easily attend court proceedings in Spain to recover funds if the seller defaults.

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The three types of arras

Spanish law distinguishes three types, with very different consequences. The contract MUST specify which type — if it does not, Spanish courts default to confirmatorias (the strictest type).

Type

Penitenciales

Legal article

Art. 1454 CC

Buyer withdraws

Loses the deposit

Seller withdraws

Returns DOUBLE the deposit

Type

Confirmatorias

Legal article

Art. 1124 CC

Buyer withdraws

Court can force completion + damages

Seller withdraws

Court can force completion + damages

Type

Penales

Legal article

Art. 1152 CC

Buyer withdraws

Loses deposit + may face additional damages

Seller withdraws

Returns deposit + damages, no doubling

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The financing clause (cláusula de financiación) — critical for non-residents

Without a financing clause, if your Spanish mortgage is denied or the FEIN comes back with worse terms than expected, you forfeit your deposit. For a buyer who depends on a Spanish mortgage, it is the biggest financial risk of the arras.

A properly drafted financing clause states: 'In the event the buyer is unable to obtain mortgage financing of at least X euros at terms substantially equivalent to those described in [attached pre-approval letter] within Y days, the contract shall be voided and the deposit returned in full to the buyer, without further obligation by either party.'

Key parameters to include: the exact loan amount needed, the maximum acceptable interest rate or differential, the bank or banks from which financing is sought, the deadline, and the procedure for refunding the deposit if the condition fails.

Sellers often resist the financing clause because it weakens their position. Be firm: if you are a non-resident relying on a Spanish mortgage, no professional advisor would let you sign without it. If the seller refuses, walk away — the risk is not worth it.

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Private signature or notary deed?

The arras contract is NOT legally required to be signed before a notary — a private document signed by both parties is fully enforceable. Signing it as a public deed (escritura pública) gives it a fixed date and the stronger evidential weight of a public document, which helps if you ever have to enforce it.

A notary deed is charged on the notary's official fee scale. Ask the notary in advance whether any regional tax applies to your deed.

Alternative for non-residents: have the arras drafted and reviewed by a Spanish abogado, then sign privately. The lawyer's fee is set by the lawyer. A notary deed is worth considering for high-value purchases or sellers you have not met in person.

Practical tip for remote buyersIf you cannot be in Spain to sign the arras, your Spanish lawyer can sign on your behalf via a Power of Attorney (poder notarial). The PoA must be specific to the arras transaction and signed at the Spanish consulate in your country or apostilled in your country.

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Essential clauses for non-residents

Beyond the financing clause, ensure these are explicitly written: (1) exact property identification with Catastral reference (Registro de la Propiedad data), (2) included furniture and fittings with itemised inventory, (3) certificate of urbanistic compliance (declaración responsable urbanística), (4) ITP/AJD allocation (buyer pays unless negotiated otherwise), (5) penalty for late completion by seller.

For new-build purchases (obra nueva): completion certificate (certificado final de obra), first-occupancy licence (licencia de primera ocupación), and the developer's bank guarantee for the deposit (mandatory under Ley 38/1999). Never pay arras to a developer without a verified bank guarantee.

For inherited or shared properties: written authorisation from ALL co-owners or heirs. If even one co-owner does not consent, the sale cannot proceed and you may lose months waiting for the contract to clear.

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Frequently asked questions

What if my mortgage is approved but at a higher interest rate than I expected?

This is exactly what the financing clause should cover. A well-drafted clause specifies the MAXIMUM acceptable rate (e.g. 'fixed rate not exceeding 3.50%' or 'variable rate not exceeding Euribor + 1.00%'). If the bank's FEIN exceeds that threshold, the financing clause triggers and you can recover your deposit. Without that explicit ceiling, you are forced to accept the bank's offer or forfeit the deposit.

Can I extend the arras deadline if my NIE takes longer than expected?

Yes, but it requires explicit written consent from the seller in an addendum (anexo) signed by both parties. Build in a buffer when negotiating: a non-resident needs time for the NIE, the bank account and the mortgage approval, plus the 10 calendar days between the FEIN and signing. The seller is usually open to extensions if you are progressing in good faith and can show documentation.

What happens to the deposit between arras and completion?

Best practice: deposit held in escrow by your Spanish lawyer or by a notary. Worst practice: paid directly to the seller's personal bank account (impossible to recover if the seller misappropriates). Always insist on escrow, and ask your lawyer or the notary what the service costs and how the money is protected.

If the seller withdraws under penitenciales, when do I get the doubled deposit?

When the seller formally withdraws (ideally by burofax with proof of delivery), the doubled deposit is due; set a payment date in the contract. If the seller delays or refuses, you can sue for the doubled amount plus interest at the legal rate (3.25% a year in 2026). Weigh the amount against the cost of litigation before suing.

Can I use a mortgage pre-approval letter as proof for the financing clause?

Yes, and you should attach it to the arras contract as an annex. The pre-approval letter from the bank (with specific loan amount, rate range and conditions) becomes the reference point for the financing clause. If the final FEIN substantially diverges from the pre-approval terms, the financing clause triggers. Ask the bank how long its informal pre-approval (preconcesión) takes before you set the arras deadline.

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About this content

Fernando Hierro
Fernando Hierro

Mortgage Content Editor

Published: May 2026

Last updated: October 2026

This page is informational and editorial in nature. It explains how the described mortgage conditions typically work and what to review, without guaranteeing results or replacing a lender’s assessment.

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