How much time can pass between the deposit agreement (“contrato de arras”) and the public deed? Who decides the signing date?

Question

José Manuel Alburquerque · Accepted Answer

Whatever the buyer and seller agree, because the law sets neither a minimum nor a maximum. In practice, it is usually between one and three months. More time may be needed if the buyer requires a mortgage or the seller's mortgage has to be discharged. The date is set by the contract, normally as a deadline before which one of the parties, often the buyer, notifies the other of the notary's office, the day and the time. If the contract says nothing, either of them can ask the other to sign within a reasonable time. The period If the contract does not set a time limit, the “Código Civil de Cataluña”, the Catalan Civil Code, requires the seller to hand over the flat without undue delay and the buyer to pay the price on receiving it. The law only sets a limit in one case. A withdrawal deposit (“arras penitenciales”) that is lodged with a notary and recorded at the “Registro de la Propiedad”, the Land Registry, an option that only exists in Catalonia, can be agreed for six months at most. When setting the deadline, allow for what needs to be done before signing: If you need a mortgage, the mortgage credit act requires the bank to give you the loan documents at least ten calendar days before it is signed. In addition, by the day before at the latest, you must go to the notary of your choice for the notary to explain the loan to you and record this in a notarial record (“acta notarial”). In a 2024 judgment, the “Tribunal Superior de Justicia de Cataluña”, the High Court of Justice of Catalonia, considered a period of twenty days insufficient to obtain the mortgage. If the flat is subject to a mortgage taken out by the seller, a certificate from the seller's bank showing the outstanding balance will be needed in order to discharge it on the day of signing. If the flat is let, the sale must first be notified to the tenant, who may have the right to buy it before anyone else. If the home is one that the Generalitat de Catalunya (the Catalan government) can buy before anyone else, such as those acquired after 9 April 2008 in mortgage enforcement proceedings (repossessions), whether by the bank or by the winning bidder at the auction, even if they have since been sold on, the seller must first notify the sale to the “Agència de l'Habitatge de Catalunya”, the Catalan housing agency, which has two months to decide whether to buy it. Who decides the date and the notary The contract decides. It should say who notifies the notary's office, the day and the time, how many days in advance and by what means. Changing the date requires the agreement of both parties. Put it in writing. An exchange of emails in which both accept the new deadline is enough. Between private individuals, if the contract does not say who chooses the notary, the choice falls to whoever pays most of the notary's fees, which in Catalonia is usually the buyer. Where there is a mortgage, the sale is normally signed before the notary the buyer chooses for the loan. If the day arrives and the other party does not turn up, go to the notary's office and ask for a notarial record stating that you attended ready to sign. What happens next depends on the type of deposit. A short delay does not always make it possible to cancel the contract, unless the contract says that, once that date has passed, the sale is no longer of interest.