Seller breach for failing to grant the public deed: consequences and next steps in Málaga, Nerja and the Costa del Sol

In real‑estate transactions in Spain, it is common to sign a private contract first (a deposit / arras) and then go to the Notary Public to sign the public deed (Spanish: escritura pública). Problems arise when the agreed completion date passes and the deed is not signed. In that scenario, the seller breach for failing to grant the public deed and the financial consequences of it can be significant—especially where the contract includes penitential earnest money (arras penitenciales).

A recent decision by the Provincial Court of A Coruña (Section 6, Judgment 34/2023, 13 February; ROJ: SAP C 240/2023) reinforces a practical point: a delay attributable to the seller in signing the notarial deed may justify terminating the contract and applying Spanish Civil Code article 1454, even if the buyer had already received possession or the keys.

As lawyers specialised in real‑estate law and conveyancing in Málaga, Nerja and the Costa del Sol, we explain below how to identify the risk, what evidence you should gather, and which steps tend to work best to protect your position.

Quick summary

• If the seller does not appear at the notary (or cannot sign due to issues under their control) within the agreed timeframe, there may be a contractual breach.
• With penitential deposits (arras penitenciales), article 1454 may mean double repayment when the breach is attributable to the seller.
• Early delivery of possession/keys can indicate intent to perform, but it does not automatically “cure” a meaningful delay where the deadline was agreed and has been missed.

For a general overview, see the Notaries’ guide on buying a home (in spanish).

Legal checklist before completion: deposits (arras), deadlines, Land Registry charges and notary appointment.

Key legal framework: seller breach for failing to grant the public deed, deadlines and cooperation (Civil Code art. 1279)

In practice, a private contract binds the parties; however, the public deed is decisive to complete the transaction with legal certainty (Land Registry registration, mortgage financing, control of encumbrances and legal capacity/representation).

Spanish Civil Code article 1279 provides that the parties may compel each other to grant the public deed when required or agreed.

When does a seller breach for failing to grant the public deed become “critical” due to the notary deadline?

Without getting overly technical, risk increases when:

• There is a fixed completion date (or short period) for clear reasons (mortgage, relocation, school, visa, investment timetable).
• The contract provides express consequences for not signing (termination, penalties, forfeiture/repayment of the deposit).
• There is lack of diligence: silence, repeated delays, missing documents, encumbrances not cancelled.

If you want a broader overview of vbuying/selling in Spain (private contract vs public deed), you may find this useful: Sale / Purchase of homes: Did you know the issues?

When does it amount to a seller breach for failing to grant the public deed?

It is usually argued (on a cumulative basis) where the following elements are present:

• An agreed deadline to sign the deed (or a specific date).
• The deed cannot be signed due to causes attributable to the seller (e.g., encumbrances not cancelled, incomplete title, essential documents not provided).
• Lack of properly evidenced justification (simply saying “paperwork is delayed” is usually not enough without supporting documentation).

In many transactions in Málaga and the Costa del Sol, the issue is not that “the notary has no appointment,” but that the file reaches the notary without key prerequisites having been completed.

Penitential earnest money and Civil Code article 1454: the typical financial outcome of a seller breach for failing to grant the public deed

In deposit (arras) contracts, the first step is to identify the type of deposit agreed:

• Penitential deposit (art. 1454 Civil Code): allows withdrawal with a penalty; if the seller breaches, the seller must return double.
• Confirmatory deposit: an advance payment; remedies usually focus on performance and/or damages.
• Penal deposit: a contractual penalty; the effect depends on the wording and compatibility with other remedies.

When the dispute is about completion at the notary, the deposit classification often determines the outcome. That is why, when completion is blocked, the first task is always to audit the contract with a legal lens.

For a practical comparison, see: penitential vs confirmatory wording and consequences.

What recent case law adds: possession does not automatically “cure” the delay

This judgment is particularly useful because it focuses on a frequent real‑world pattern:

• The parties agree a deadline for signing the deed.
• A short extension is granted.
• The deadline (and extension) is missed due to issues on the seller’s side.

The court stresses that giving possession (or even signing a temporary “bridging” lease) may show an intention to perform, but it does not neutralise the fact that the agreed deadline has been exceeded in a way attributable to the party who must facilitate completion.

This matters especially where financing is involved: if a mortgage offer expires due to delays, the buyer’s loss can be concrete and provable.

Common red flags in Málaga/Nerja: why completion fails and leads to a seller breach for failing to grant the public deed

Typical (and avoidable) scenarios include:

• Land Registry encumbrances: mortgages, attachments, charges, resolutory conditions.
• Incomplete title: inheritance not completed, co‑ownership without consent, insufficient powers of attorney.
• Registry/Cadastre inconsistencies or lack of coordination.
• Planning/technical documentation: first occupancy licence (LPO), certificates, property description issues.
• Non‑appearance or lack of confirmation for the notary.

In deals involving overseas buyers on the Costa del Sol, any delay is amplified (flights, accommodation, removals, bank deadlines).

If the transaction depends on a mortgage, you may also want to consider this scenario: returning the deposit where financing is not obtained (good faith / bad faith).

Evidence checklist to support a claim that the seller failed to grant the public deed

If the transaction is blocked, gathering evidence early makes a major difference:

Tip: if the deadline is close, a formal recorded notice (burofax) is often a key evidential piece.

Case study (Nerja): overseas buyer + mortgage offer + registry charge

Scenario: an overseas buyer signs an earnest money agreement in Nerja with a 60‑day deadline to sign the deed. The bank approves financing, conditional on completion by a specific date. The seller undertakes to cancel a registered charge and provide a community certificate.

What happens:

• The charge is not cancelled in time.
• The notary cannot authorise completion.
• The mortgage offer expires and the buyer loses conditions.

In such a case, the seller may be considered in breach for failing to grant the public deed, if the obstacle was under the seller’s control and the deadline was agreed as decisive. Strategy depends on the contract (deposit type) and the available evidence.

If the purchase fails because financing is refused, see bank financing refusal.

For non‑resident buyers, it is also important to coordinate documentation and tax planning. See our service for Non‑residents – International Taxation.

What to do if there is a seller breach for failing to grant the public deed because the seller does not sign the deed on time (recommended steps)

1. Audit the contract: deposit type, deadlines, extensions, termination clauses and pre‑completion obligations.
2. Call the seller to completion in writing (date and notary) and keep records.
3. Send a formal recorded notice (burofax) if the deadline is at risk.
4. Consolidate evidence: Land Registry, notary, bank, communications.
5. Choose the strategy:
   • Specific performance (if you still want to complete).
   • Termination + deposit claim (if completion is no longer viable or the deadline was essential).

If you want professional drafting/negotiation of deposits and purchase agreements, see our Contracts service.

Prevention: clauses and practices that avoid disputes

To reduce litigation risk, an earnest money agreement should typically include:

• Deed date/deadline and the mechanism to schedule completion.
• Limited extensions with defined causes and an obligation to evidence actions.
• Seller’s duty to cancel charges by a fixed date.
• Minimum documentation package (certificates, receipts, representation).
• Clear consequences for non‑appearance.

A proper legal review before signing often makes the difference between a smooth completion and a costly dispute.

Even where the deed is signed, a poorly managed purchase can create issues later. Case study: Problems after buying a property in Málaga.

In some cases, a well‑drafted purchase option can be more effective than an earnest money agreement.

FAQs

What happens if there is a seller breach for failing to grant the public deed because the seller does not sign the deed on time?

It depends on the contract and the reason for the delay. If the deadline was decisive and the seller cannot complete due to attributable causes, there may be a breach and—if the deposit is penitential—article 1454 may apply.

Can I recover my deposit?

If the contract clearly provides for penitential earnest money and the breach is attributable to the seller, the typical outcome is double repayment. The key is documenting the deadline and attribution.

Does handing over the keys prevent a claim?

Not necessarily. Early possession does not, by itself, eliminate the duty to complete on time where a deadline was agreed.

Do I need to send a burofax before terminating?

Not always, but it is often advisable: it fixes your position, proves the completion call, and strengthens attribution.

What if the delay is due to the notary or the bank?

The real cause must be analysed. If the seller had everything ready and the delay is external and evidenced, attribution may change.

Conclusion

A delay at the notary is not a minor inconvenience: it can trigger termination and financial consequences (especially where penitential deposits are involved). The decisive factors are the contract wording, the agreed deadline, and evidence showing who caused the blockage.

If both parties contributed to the failure of the transaction, the framework changes. See mutual breach.

Do you need legal assistance with your property purchase in Málaga, Nerja or the Costa del Sol?

If you face a potential seller breach for failing to grant the public deed—or you want to prevent risks before signing an earnest money agreement—at Pérez Parras Economists & Lawyers we support you end‑to‑end: contract/arras drafting and negotiation, Land Registry and document checks, coordination with the notary and financing, and assistance at completion and afterwards.

Contact us so we can advise you and accompany you throughout your conveyancing transaction in Málaga, Nerja and the Costa del Sol: