Practical Guide · Real Estate Law
What to check before signing, how to get the deposit (arras), the encumbrances and the payment in order, and what changes in Catalonia and Barcelona for buyers, sellers and investors.
Sandín Abogados · 2026
A property purchase and sale is not simply a matter of agreeing on a property and a price. In Spain, the contract rests on civil law, mortgage and land registry legislation, consumer protection rules, land-use regulation and taxation. Land Registry records provide an essential part of the information, but they do not in themselves establish that the physical reality of the property, its permitted planning use, its occupancy or its tax position match what the parties believe they are buying and selling.
In Catalonia, a separate body of regional civil law also governs the sale itself, the deposit (arras), third-party financing, commonhold ownership and conformity of the property with the contract. Catalan legislation on housing, habitability, technical building inspections, planning and taxation also comes into play. In Barcelona, town planning, licences, planning affectations, subsidised housing and public pre-emption rights can alter the transaction; any recently introduced reform or regime must be checked as at the date of signing.
This guide sets out the transaction in order, from the offer through to registration. It works as a map for identifying outstanding decisions and documents, not as a legal opinion on any specific property. Sandín Abogados reviews property transactions for buyers, sellers, investors and operators from a coordinated contractual, registry, planning and tax perspective.
The 30-second answer
The seller must deliver the property and the buyer must pay the price on the agreed terms. That basic formulation does not exhaust the transaction: the seller must also be legally able to transfer the right on offer, produce the required documentation and be answerable under the contract and the law; the buyer must comply with the payment mechanics, attend the signing and bear the costs and taxes that fall to them.
Before signing, it is worth turning those general obligations into verifiable commitments:
The Civil Code, in its consolidated text, and, where applicable, Catalan civil law form the basis of that allocation.
A property purchase and sale may be governed simultaneously by national, regional and municipal rules. The applicable law depends on the location and nature of the property, on who the parties are, on the intended use, on whether there is financing and on whether the seller is acting in the course of business.
At national level, the key areas are civil and mortgage/land registry legislation, land-use rules, building regulation, consumer protection, energy performance certification, leases and tax law. The consolidated Mortgage Act sets out the land registry framework, while the consolidated text of the Land and Urban Regeneration Act requires planning duties and planning situations to be taken into account.
In Catalonia, Books Five and Six of the Catalan Civil Code govern property rights, commonhold ownership and sale contracts, among other matters. Layered on top are the rules on housing, the habitability certificate (cédula de habitabilidad), the mandatory technical building inspection (ITE), consumer protection, planning and taxes. Recent Catalan reforms on housing, pre-emption rights and taxation must be checked in their consolidated text and as at the exact date of the transaction.
No: the private contract documents the agreement between the parties, whereas the public deed embodies that transaction in a notarial instrument capable of being entered at the Land Registry. A private contract may be valid and binding, but on its own it does not provide the registry protection that registration is intended to secure.
Signing “just a deposit agreement” does not mean signing a document of little consequence. A reservation, an accepted offer or a private contract may settle essential terms, condition the financing and establish severe financial consequences. That is why legal review must take place before signing, not only once the notary’s office has received the file.
The difference lies in the content of the document, not merely in what it is called. An offer may become binding once accepted, a reservation may impose obligations, and a sum described as a “holding deposit” may operate in very different ways depending on the clauses; what matters is reading what is being promised, what money is being handed over and how the agreement can be brought to an end.
Before signing, every document should identify at the very least the parties, the property, the price, the nature of the sum paid, where that money goes, how long the agreement remains in force, the conditions still outstanding and the effect of withdrawing. It should also make clear whether the estate agent is receiving money on behalf of either party, and what happens if the seller does not accept or the due diligence uncovers a problem.
The type of deposit determines whether the sum confirms the contract, pre-agrees a penalty, or entitles a party to walk away on the agreed terms. In Catalonia, a walk-away deposit (arras penitenciales) must be expressly agreed; if the document is ambiguous, it should not be assumed that either party can withdraw simply by paying a predetermined consequence.
The review should answer four questions: is there already a binding sale? Is the sum deducted from the price? Can performance be enforced? What happens if each party defaults? The answers must appear in the text itself and be coordinated with the financing, the encumbrances and the completion date.
The clauses that protect you are those that turn each risk into a verifiable condition, an identified responsible party and a defined consequence. The wording has to be tailored to the file: it is not enough to state that the property is “free of encumbrances and with all payments up to date” if there is no provision for how a problem is to be evidenced, cleared or compensated.
Among the most useful clauses are:
The consequence depends on whether a binding sale already exists, on the type of deposit, on which clause was breached and on who caused the failure. The return or forfeiture of sums paid, specific performance, termination and damages may all be in play, but no consequence should be asserted without reading the contract and reconstructing the facts.
The first practical decision is to distinguish a delay that can still be put right from an outright refusal. The next step is to check whether the condition relied upon was met, who was required to act, and whether the contract requires formal notice or allows a cure period. The strategy should be set by a lawyer with the complete file in front of them.
The buyer usually pays Transfer Tax (TPO) on a second-hand home and usually bears VAT, plus Stamp Duty (AJD) where applicable, on a developer’s first delivery. A second or subsequent business-to-business delivery may follow a different mechanism where there is a valid waiver of the exemption; the regime, taxable base, rates, reliefs and deadlines must all be verified for the relevant territory and the date of signing.
The Catalan Tax Agency explains how property sales are taxed, and the Spanish Tax Agency distinguishes between VAT and Transfer Tax on a home purchase. These sources should prevail over any generic calculation.
| Scenario | Buyer’s indirect tax | Decisive checks | Key documents | Practical effect |
|---|---|---|---|---|
| Second-hand home sold by a private individual | Normally Transfer Tax (TPO) | Ownership, encumbrances, occupancy, owners’ association, property tax (IBI), Cadastre and planning status | Nota simple, association debt certificate, IBI receipt, cadastral reference, habitability certificate and energy performance certificate | Budget for the tax, notary, registry, professional review and any regularisation that may be needed |
| First delivery by a developer | Normally VAT plus Stamp Duty (AJD) where applicable | Whether this really is a first delivery, licences, warranties, floor area, specifications and occupancy | Contract, specification report, licences, building documentation and warranties | Build the tax treatment, control of stage payments and the technical review into the timetable |
| Second or subsequent delivery by a business | Usually Transfer Tax (TPO), as the delivery is VAT-exempt; the exemption may be waived | Status of the parties, use of the property, right to deduct and the requirements for a valid waiver | Deed, evidence of tax status and any notices required by law | The choice between regimes can change the cost and should be modelled before signing |
| Property that is tenanted, occupied or encumbered | Depends on the underlying transfer; the encumbrance alone does not determine the tax | Enforceability of the lease against the buyer, possession, redemption figures and ranking of charges | Lease agreement, nota simple, certificates and cancellation instructions | May call for retentions, conditions precedent and coordination with the bank |
Note: this table is for information only and does not constitute a tax calculation. The Spanish Tax Agency, the regional tax authority, the town hall, the Land Registry and the property’s own documentation must confirm the treatment applicable at the time of the transaction.
The seller may be taxed on the gain realised and, depending on the case, on the municipal capital gains tax (plusvalía), in addition to bearing cancellation or regularisation costs. The personal tax depends on whether the transferor is resident, non-resident or a company; exemptions, withholdings, calculation methods, tax forms and deadlines all require an individual assessment.
If the seller is a non-resident, the buyer may be required to withhold and pay over a percentage of the consideration. The Spanish Tax Agency sets out the withholding due from the buyer of a property from a non-resident; it has to be built into the payment flow, not dealt with afterwards.
Costs are allocated according to the applicable law and to any valid agreement between the parties, but they must be budgeted line by line. There is no reliable universal percentage: the property, the financing, the copies of the deed, the cancellations, the administrative agent, the complexity and the taxes all change the cost.
The budget should separate out:
Before completing, tax advice on property transactions should confirm the nature of the transfer, the taxable base, any available reliefs and the formal obligations involved. A marketing label such as “new build”, “second-hand” or “investor” is not enough to file the tax correctly.
In Catalonia, the applicable Transfer Tax or Stamp Duty regime, the taxable base linked to the reference value where relevant, and the rates or reliefs in force on the date the tax accrues must all be reviewed. The Catalan scales and special rates have been subject to recent changes, so any threshold, rate or new provision should be confirmed directly with the Catalan Tax Agency (ATC).
The tax decision should not be left until the end. In business transactions, the status of seller and buyer, the property’s history of use, the VAT exemption or waiver, and the right to deduct can all transform the cost. For subsidised housing, or buyers in specific circumstances, there may be reliefs subject to requirements that must also be evidenced.
The most serious failings are handing over money on the strength of an ambiguous document, relying on the nota simple alone, and leaving tax or planning matters until later. All three have something in common: they come to light once the price or the obligation is already fixed and there is little room left to negotiate.
The transaction should be paused until the problem has been identified, quantified and matched to a contractual remedy. Depending on the case, the parties may agree on cancellation of the charge, a retention, regularisation, a price adjustment, a condition precedent, or not proceeding at all; there is no single answer without the documents.
Works carried out without a licence are not cured by selling the property. If the use or the layout cannot be legalised, the buyer may end up with an asset that is of no use for their project and that is also exposed to planning enforcement. Registered charges require coordination with the parties holding them and with the Land Registry; debts to the owners’ association call for a certificate, the minutes and a clear allocation of liability.
The buyer should preserve the evidence, give notice of the defect and establish its origin before choosing which claim to bring. The route depends on whether it is a lack of conformity, a construction defect, a breach of a contractual representation, a habitability issue or damage arising later; the legal time limits vary and must be checked straight away.
It is worth gathering the contract, the deed, the sales listing, the specification report, photographs, correspondence, invoices and technical reports. Irreversible repairs should also be avoided before the cause has been documented, unless there is an urgent need to prevent further damage.
A real estate lawyer should get involved before the offer, reservation or deposit agreement fixes the price and allocates the risks. A review later on is still useful, but the greatest preventive value comes while it is still possible to attach conditions to the payment of money, the financing, the encumbrances, the documentation and the exit route.
Sandín Abogados can review the transaction end to end: structure, due diligence, contract negotiation, coordination of the deed, tax and post-completion steps. For tenanted assets, or those involving licences, changes of use, foreign investment or potential disputes, the relevant practice areas are brought in without losing a single, unified view of completion.
Before signing a deposit agreement, it is advisable to check the seller’s identity and legal capacity, ownership and registered encumbrances, the cadastral and planning position, occupancy, any debts to the owners’ association and outstanding property tax (IBI), and the applicable technical documentation. The exact list depends on the property and the municipality; the review must be completed before any non-refundable sum is handed over.
The indirect tax depends on whether the home is second-hand or is a developer’s first delivery: Transfer Tax (TPO) normally applies to a second-hand home, and VAT, plus Stamp Duty (AJD) where applicable, to a first delivery. Rates, reliefs, the taxable base and the filing deadline vary by territory and by circumstances, so they must be verified as at the date of signing.
It is not compulsory to sign a deposit agreement before a property purchase, but a private contract is binding once entered into. Its consequences depend on the drafting and on the type of deposit agreed, so the encumbrances, the financing and the grounds for withdrawing should all be reviewed before signing.
Yes, a mortgaged home can be sold provided the transaction properly arranges the cancellation of the charge, a retention from the price, a transfer of the mortgage to the buyer or another agreed solution. The buyer needs to know the redemption figure and the registry position, and should not hand over the price without a documented mechanism to control the charge.
There is no single timescale between the deposit agreement and the deed: it is set by the contract and depends on the financing, the documentation, the encumbrances and coordination between the parties. The timetable should identify deadlines, outstanding conditions and the consequences of delay, rather than relying on a generic estimate.
A foreign buyer can acquire property in Spain, but they must prepare the required identification, arrange representation if acting remotely, ensure their funds are traceable, and obtain tax analysis of both their residence status and the transaction. Translations, powers of attorney and coordination with the bank may also be needed before signing.
A secure transaction requires the contract, the documentation, the tax treatment, the planning position and the flow of funds all to tell the same story. Sandín Abogados works alongside buyers, sellers and investors from the first review through to registration, with particular experience in transactions in Barcelona and Catalonia.
