01 · From Offer to Deed — The Buying Process & Contracts on Mallorca
*What actually happens between "I'll take the villa" and your name in the land register? And why the contract type behind your deposit decides whether you see — or lose — thousands of euros if the deal falls apart. Here's the view from the buyer's side of the table.*
In one breath: reservation → private preliminary contract with a deposit (arras) → due diligence → notarised deed (escritura pública) plus payment of the balance → registration in the land register. The key point for you as a buyer: Spain does not transfer ownership when you sign the private contract — only when delivery (traditio) and title come together.
Contrato de reserva (reservation agreement)#
A reservation secures the property for a modest sum — typically 3.000–10.000 € — and takes it off the market for a short while.
- In practice this usually runs through the agent and only binds for a few weeks, until either the
contrato de arras or the escritura itself follows. The one question to settle up front: is the reservation sum forfeited if you walk away, or is it credited toward the price or refunded?
- What matters: even at this early stage your conditions belong in writing — clear title (free
of charges), a valid cédula (habitation certificate), financing where relevant, and a Military Permit where relevant. Anything you don't set down as a precondition here is hard to bolt on later.
Contrato de arras (deposit contract) — the three variants#
A private preliminary contract with a deposit is the norm on Mallorca. What matters is not that you pay a deposit, but which type you agree — because the consequences of walking away differ dramatically. The legal anchor is Art. 1454 Código Civil (for arras penitenciales).
Arras penitenciales (forfeitable deposit / genuine right to withdraw) — Art. 1454 CC#
- Consequence: either party may walk away. **If the buyer withdraws, they lose the deposit; if the
seller withdraws, they must repay it double.**
- A deposit of 5–10 % of the purchase price is customary here.
Arras confirmatorias (confirmatory / part payment)#
- Consequence: the deposit counts as part payment and as proof that the contract was concluded.
There is no right to withdraw; whoever breaks the contract risks the other side insisting on performance or damages (Art. 1124 CC).
Arras penales (penalty deposit)#
- Consequence: the deposit acts as liquidated damages or a contractual penalty
(Art. 1152–1153 CC) — the contract remains, in principle, enforceable and capable of being performed.
⚖️ What the courts say: when in doubt, *confirmatorias*#
🟡 settled / ✅ case ref. on record — In the leading judgment STS 583/2018 of 17.10.2018 (Tribunal Supremo, Sala 1ª, appeal 1533/2016; CENDOJ reference ROJ STS 3513/2018) the Supreme Court makes it clear: merely citing Art. 1454 CC is not enough to establish arras penitenciales. The intention to allow withdrawal must be agreed clearly and unmistakably — absent that, the court treats the arras as *confirmatorias*, i.e. fully binding.
- This line is confirmed by STS 270/2025 of 19.02.2025 (ECLI:ES:TS:2025:726) ✅: the wording of the
contract prevails and is construed restrictively.
- 🟡 STS 538/2026 of 9.04.2026 (Sala 1ª): the developer or seller may also withdraw under
arras penitenciales (compensation is capped at double the deposit); a clause drafted clearly and symmetrically is not abusive. To be distinguished from this is STS 178/2026 (9.02.2026: a defaulting seller → implied withdrawal, double repayment to the buyer). 🔴 The ECLI and the reporting judge (ponente) still need to be verified in CENDOJ.
What this means for you as a buyer: name the type explicitly. If you want a genuine right to withdraw, it's not enough to cite Art. 1454 CC in the contract — the intention to withdraw and its consequences must also be spelled out clearly. Where possible, hold the deposit in escrow with the notary rather than handing it straight to the seller. And write your exit grounds — clear title, cédula, financing, Military Permit — into the contract as conditions that void the deal if unmet.
Contrato de opción de compra (option-to-buy contract)#
With a purchase option the seller grants you, against an option premium, the right to buy the property within a set period on terms fixed in advance. If you exercise the option, the premium is usually credited toward the purchase price; if you don't, it is forfeited. You'll often meet this structure with new-build and development projects, or where you still need a permit (such as the Military Permit) or your financing in place.
Contrato privado de compraventa (private purchase contract)#
The private (non-notarised) purchase contract records all the terms — price, payment, handover, condition, inventory. It is legally binding, but it has no effect on the land register yet; for that the notarised escritura is mandatory.
Escritura pública de compraventa (notarised purchase deed)#
The escritura pública is the public purchase deed witnessed by the notary. With signature, payment and the handover of keys, ownership generally passes to you — title plus traditio, Art. 609 & 1462 CC. Only this deed opens the door to registration in the land register (Registro de la Propiedad), and that registration is the step that protects you as a good-faith buyer.
- At the notary appointment payment is usually made by **bank-certified cheque
(cheque bancario nominativo) or the sum has been transferred in advance; the notary documents the means of payment — this is compulsory. If a non-resident is selling, you as the buyer withhold 3 % retención** (withholding tax) (→ ch. 06). The transfer tax (ITP or IVA+AJD) follows afterwards within the deadline (→ ch. 04).
- Anyone who can't travel in person buys by power of attorney (
poder notarial) (→ ch. 02).
Transfer of ownership & registration#
1. escritura before the notary — ownership passes with this. 2. Pay the tax (ITP/AJD or IVA) within 30 working days (Modelo 600 at the ATIB, → ch. 04). 3. Registration in the Registro de la Propiedad (via a gestoría) — your protection against a double sale and third-party claims. 4. Re-register at the Catastro, switch the utility accounts, transfer the IBI (→ ch. 05).
Deep dive#
How long does it take? (checklist)#
On average reckon with 2–4 months; in the luxury segment it often runs 6–12 weeks from acceptance. The sequence: apply for the NIE (1–4 weeks) → bank account → offer/acceptance → reserva → due diligence (nota simple, planning/urbanismo, IBI, cédula, energy certificate, community charges; 1–3 weeks) → arras/opción (usually 10 %) → period until the escritura (1–3 months) → notarisation + payment of the balance + keys → tax (30 working days) → registration in the land register.
Financing condition (condición suspensiva de financiación) — the underestimated case ✅#
This is where it gets expensive for buyers: without a precise financing clause you lose your arras if the bank ultimately says no — a plain refusal alone does not release you. A robust clause names amount, maximum interest rate, term, deadline and the evidence required (the formal bank rejection).
Watch out for drafting errors: a right to withdraw and an obligation to perform in the same contract contradict each other. Boilerplate like "en concepto de señal y arras" — with no type stated and no reference to Art. 1454 — is also risky.
señal / reserva / depósito — keeping the terms straight#
A señal is simply the sum of money, whereas arras is the legal institution governed by the Código Civil (Art. 1454, greater legal certainty). The contrato de reserva is not regulated by statute, so it is freely structured and usually handled through the agent (1–5 %). 🔴 Whether depósito is a separate legal figure depends on the individual contract.
Option contract — tax & land register#
The opción de compra can be entered in the land register under Art. 14 Reglamento Hipotecario (🟡 classically with a term of no more than 4 years). The prima (option premium) triggers ITP (TPO) when the seller is a private individual, but IVA when the seller is a business — the tax base is at least 5 % of the purchase price; on exercise, ITP on the full purchase price then falls due again.
The notary appointment — how it runs#
Verification of identity or power of attorney → the notary checks for encumbrances (a current nota simple) → reading aloud of the escritura → manifestaciones (declarations — including no debts to the community or on the IBI, and an inventory list) → payment of the balance (by cheque or transfer, documented) → signature or authorisation → handover of keys (toma de posesión). Present are: the notary, the parties (or their attorneys-in-fact), a bank representative where relevant, and a lawyer or interpreter.
Special cases#
- Buying off-plan from a developer (
sobre plano): any payments made must be secured by an
aval (bank guarantee) or insurance (Disp. adic. 1ª Ley 38/1999 as amended by Ley 20/2015) — → ch. 10.
- Existing mortgage: either
subrogación(you take over the mortgage, subject to a
creditworthiness check) or cancelación (redemption; the charge must be deleted from the register — in practice a portion of the price is held back for this).
- Tenanted property: the lease continues (
subrogación); the tenant has a right of first refusal
(tanteo/retracto, 30 calendar days, Art. 25 LAU) — → ch. 13.
Matrimonial property regime for foreign couples ✅#
The decisive rule is EU Regulation 2016/1103 (from 29.01.2019): a choice of law (by habitual residence or nationality) is possible; without a choice, a cascade of connecting factors applies. But: for registration in the land register the lex rei sitae applies — i.e. Spanish law — so you must declare or prove your matrimonial property regime (gananciales, community of property, vs. separación de bienes, separation of property) at the notary appointment.
Hidden defects (vicios ocultos) & aliud pro alio ✅#
saneamiento por vicios ocultos(Art. 1484 CC): you can choose between theacción redhibitoria
(rescission of the sale) and the quanti minoris (price reduction, Art. 1486). The time limit is only 6 months from delivery (caducidad, a strict lapse period, Art. 1490 CC) — it applies of the court's own motion and cannot be interrupted.
aliud pro alio(something wholly unfit for purpose, or simply a different thing altogether):
here the general law of contract applies (Art. 1101/1124), with a limitation period of 5 years (Art. 1964) — considerably more favourable for you as the buyer.
- Leading judgment: STS 635/2014 of 19.11.2014 ✅ (appeal 467/2013) — it clarifies how to draw
the line between the remedies and whether they can be combined. 🔎 The "STS 35/2014" that circulates on blogs is just a typo for 635/2014.
❓ FAQ (for featured snippets)#
Do I lose my deposit when buying a house on Mallorca if I withdraw? With arras penitenciales (Art. 1454 CC), yes — the buyer then loses the deposit, and the seller would have to pay double if they withdraw. With arras confirmatorias, by contrast, the contract remains enforceable. Make sure the type is settled in the contract.
From what point is the property legally mine on Mallorca? With the notarised escritura pública (title) plus handover — but you are only truly protected once you are registered in the land register.
Sources (selection)#
- Código Civil Art. 609, 1124, 1152–1153, 1454, 1462 (BOE-A-1889-4763)
- STS 583/2018 (ROJ STS 3513/2018) · STS 270/2025 (ECLI:ES:TS:2025:726) — → ch. 23
- Mallorca Magazin: "Die Grundlagen des Contrato de Arras" · Notaría/Idealista on means of payment