MR BLANCO, I have signed a “deposit contract” to buy a house in Denia (I am English). I wanted to know if the money I have given goes to the real estate agent or to the seller and what guarantees do I have that they will sell the house to me?
Thank you for your email. Your question refers to the “contrato de arras“ or deposit agreement in the sale of a property, and refers to the amount of money paid in advance to the signing of the Escritura. When the private contract of purchase is signed, you have signed a contract with two different agreements on it: the agreement of purchase “acuerdo de compraventa” and the deposit
agreement “acuerdo de arras”.
Any amount that the buyer delivers to the real estate agency in the form of a deposit must be destined to the seller, and the agency may only have these amounts for the sole purpose of depositary and always being authorized by the seller to receive them on their behalf (Notarial power). It is highly recommended to ask for a certificate from the bank account holder.
There are three different types of deposit agreement, otherwise known as Acuerdo de Arras
1: CONFIRMATORY Arras (arras confirmatorias).
The Supreme Court has established that Confirmatory arras are those aimed at reinforcing the existence of the contract by constituting a signal or proof of its execution. If you sign this type of deposit you will receive the same amount delivered plus any damages for cancelling. If the buyer decides not to buy he will lose the deposit.
2: ARRAS AS DAMAGES COMPENSATION (arras penales).
The difference in this case is that the economic compensation has already been established in the contract and it will be the amount given as “arras”. For normal is the double of the deposit amount.
3: CANCELLING ARRAS (arras penitenciarias).
The “arras penitenciaries” is a legal way to break the contract.art 1454 CC.
The most common, the difference with the previous two other types of arras is that if the seller decides not to sell, he will have to return to the purchaser the
deposit amount paid as arras and pay again the same amount as a penalty; if the buyer decides not to buy, then he loses the amount paid as deposit / arras.
The indispensable requirements for the application of arras Penitentials are:
– There must be a contract and an agreement between the parties.
– That one of the parts rescinds the contract.
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