Reserva or contrato de arras: what are the differences and what should you sign
You have found a property that interests you and the real estate agency asks you to hand over an amount of money to take it off the market immediately. This is a crucial moment where the excitement of the purchase can make us act with excessive haste.
The document presented to you to formalize this step can be called many things: “reserva” (reservation), “purchase offer”, “down payment”, “purchase commitment”, or “contrato de arras” (earnest money contract). Although in everyday language and in agencies these expressions are often used as if they were equivalent, legally they do not always produce the same consequences.
The difference between reserva and arras does not depend solely on the title at the top of the page. What is truly important is its content: who signs it, what obligations it establishes, in which scenarios the money is returned, and what happens if one of the parties decides to back out.
Before handing over any amount of money, it is advisable to fully understand the legal implications of each figure and read the document as a binding contract, not as a simple formality to "set aside" the flat.
What is a real estate reserva?
The reserva is a document through which a person interested in buying hands over an amount of money (usually a small sum, between 1,000 and 3,000 euros) so that the property stops being temporarily offered to other potential buyers.
It is usually used in the initial phase of the operation. In the vast majority of cases, it is signed directly with the real estate agency before having had the opportunity to carry out essential checks before buying a home, such as the land registry (Registro de la Propiedad) or urban planning status of the estate.
During the validity period of the reservation, the parties are expected to complete the appropriate verifications and prepare the contrato de arras or, directly, the public deed of sale.
However, there is no single model for a property reservation contract nor automatic consequences applicable to all these documents equally. A reservation can be configured in very diverse ways depending on its wording:
- A purchase offer from the buyer pending the seller's acceptance.
- An exclusive commitment to temporarily withdraw the property from the market.
- An agreement strictly subject to the satisfactory review of the documentation.
- A true disguised purchase contract.
- A payment on account of the final price.
- Disguised arras, even if the document does not explicitly use that word.
Therefore, the designation "reserva" does not guarantee that the buyer can freely withdraw nor that they have an automatic right to the return of a flat reservation. To know its real effects, one must meticulously analyze the signed clauses and the final destination of that money delivery.
What is a contrato de arras?
The contrato de arras (earnest money contract) is an agreement prior to the public deed of sale through which the buyer and seller specify the essential conditions of the property transfer, and the buyer hands over an amount (usually 10% of the total price) as a guarantee and payment on account.
Unlike the initial reservation, the earnest money contract is much more formal, detailed, and binding. Normally, this document includes in detail:
- Full identification of buyers and sellers.
- Precise registry and cadastral (catastro) description of the property.
- The agreed final price and method of payment.
- The exact amount delivered under the concept of arras.
- The maximum deadline for signing the public deed before a Notary.
- The treatment and obligation to cancel tax or mortgage encumbrances.
- Suspensive conditions regarding financing.
- The status of ordinary debts and community of owners' assessments (derramas).
- The occupancy situation and physical state of the property.
A fundamental aspect to take into account is the applicable territorial legislation. For example, in the contrato de arras in Catalonia, the delivery of money by the buyer is understood to be made under the concept of confirmatory arras (that is, as a sign that the purchase has already been concluded and as a payment on account of the price) unless the parties very expressly agree on another modality in the document, following the Civil Code of Catalonia.
This means that not every contract called “de arras” automatically empowers the parties to back out by losing the amount delivered or returning it doubled, a extremely common error of interpretation among buyers.
Difference between reserva and arras (Comparative Table)
To facilitate visual understanding of both concepts, we can synthesize their usual differences in the following reference table. However, remember that the definitive legal effects will be dictated by the exact wording of the paper you sign.
| Feature | Property Reserva | Contrato de Arras |
|---|---|---|
| Signing moment | Initial phase, upon discovering the property. | Intermediate phase, after verifying legal viability. |
| Direct link | Usually signed with the agency (purchase offer). | Directly binds the buyer and owner. |
| Economic amount | Fixed and low amount (usually 1,000€ - 3,000€). | Percentage of the sale price (usually around 10%). |
| Main purpose | Withdraw the flat from the market and ensure exclusivity. | Confirm and formally commit to the transaction. |
| Documentary content | Basic and conditional. | Complete, exhaustive, and regulating the sale. |
This distinction is the common norm in Spanish real estate practice, but it should not be interpreted rigidly. A document titled "reserva" that contains the consent of both parties, the object of the property well delimited, and the certain price, is legally equivalent to a perfected purchase contract. The name put at the top does not override its legal substance.
What types of arras exist?
To delve deeper into the difference between reserva and arras, it is decisive to break down the three typologies of arras contemplated in jurisprudence and the Spanish Civil Code (Código Civil).
Arras confirmatorias (Confirmatory arras)
These arras function strictly as an advance payment that confirms the existence of a perfectly closed purchase contract. The amount delivered is directly subtracted from the final adjudication price at the notary's office.
They do not grant, under any circumstances, a right of free withdrawal. If the buyer decides not to finalize the operation or the seller refuses to sign, the affected party is not limited to keeping or returning the deposited money: they can judicially demand the forced performance of the contract or its termination with corresponding compensation for damages.
Arras penitenciales (Penitential arras)
These are the best known and the only ones that allow either party to lawfully withdraw from the sale without needing to allege a justified breach.
Their operation is regulated by Article 1454 of the common Civil Code: if the buyer withdraws, they assume losing the property arras; if the owner-seller withdraws, they will be obliged to return them to the buyer in duplicate. For them to have this penitential effect, the contract's wording must stipulate and detail in an unequivocal manner the right of withdrawal and expressly submit to said article, especially in communities like Catalonia.
Arras penales (Penalty arras)
They establish a pre-set economic penalty mechanism in case one of the parties breaches the agreed deadlines or conditions. However, unlike penitential ones, the delivery of these arras does not grant the power to get out of the purchase obligation. The aggrieved party may still judicially demand that the transaction be formalized or claim additional compensation if greater damages are proven.
Can money delivered as a reserva be recovered?
The answer is: it strictly depends on what has been drafted and signed in the proposal document.
The buyer has the full right to recover a real estate reservation deposited in very specific scenarios:
- The owner-seller does not accept the buyer's offer within the period established in the document.
- The reservation was signed stating it was subject to the process of checking the property's charges and an unresolvable charge is discovered.
- An effective clause of arras conditioned on obtaining financing is included and banks finally deny the mortgage.
- The actual property does not coincide with the essential characteristics, habitability, or square meters advertised by the agency.
- The seller backs out unilaterally but the agency has no legal power of representation to withhold the buyer's money.
Conversely, the refund will become an arduous and potentially judicialized process if you signed a generic document without clear suspensive clauses and you back out due to subjective matters (such as having found another cheaper flat). Ambiguous expressions from real estate agencies such as "subject to documentation review" or "unless problems arise" are not sufficient to guarantee a refund if they do not specify deadlines, specific reasons for rejection, and forms of reliable accreditation.
⚠️ Have you been asked to sign a reserva?
Before making a bizum, transfer, or signing an agency reservation sheet, we review the document for free to ensure you can recover your money if any technical or financial unforeseen event arises.
Before signing the deposit
If you are considering buying in Barcelona, read the full guide: Buying a flat in Barcelona without surprises.
What happens if the seller has not signed the reserva?
This is one of the major focuses of conflict in the current real estate market. The buyer signs a reservation document with the agency in good faith and hands over a check or transfer, but the seller's signature is not on the paper because the agency has not yet conveyed the offer to them.
In this situation of legal limbo, it is vital to respond and inquire into several crucial aspects:
- Does the agency have an engagement sheet (hoja de encargo) with power of representation and collection? If the seller has not expressly authorized the real estate agency to receive deposits in their name, that document does not bind the owner.
- What is the acceptance period? The reservation document must set a strict time limit (for example, 3 or 5 business days) to obtain ratification from the seller.
- What happens to the money in the meantime? It must be clarified that the real estate agency acts simply as a depositary of the money and that, if the owner rejects the offer or does not reply within the set period, the full amount must be returned to the buyer immediately without retention of fees.
What should you check before signing a reserva?
Never sign a reservation in the heat of the moment to avoid pressure from the real estate agency or "losing the opportunity". To secure your money, demand that the paper indicates the following:
- That the amount delivered will be subject to obtaining the documentation before signing arras (clean nota simple, passed ITE, certificate of community debts, and habitability certificate).
- That the money will be fully deducted from the purchase price or the subsequent earnest money contract.
- The return of funds without penalty if the bank denies the loan for the acquisition.
- The identification and exact bank account where the escrow deposit is made.
Conclusion
As you have seen, the difference between reserva and arras goes far beyond the words chosen in the title of the page. Signing either of these two documents implies acquiring significant financial commitments.
Do not leave your assets and savings in the hands of luck or the self-interested advice of real estate agencies. At INMODOCS we take care of auditing, drafting, and securing your reservations and earnest money contracts, protecting your interests as a buyer against the seller and the marketing companies.
Do not sign without being one hundred percent sure. Leave the fine print of your next home in the hands of legal experts specializing in real estate transactions.