Investment approach
Escritura pública vs a private contract: what the notary changes
A private contract binds the parties; the escritura protects the buyer against everyone. How they differ in force, registration and enforcement, and what to check in the draft before signing day.
An escritura pública is the notarial deed of sale, signed before a notary, without which the buyer's right cannot be entered in the Registro de la Propiedad (the property register) (art. 3 Ley Hipotecaria, the Mortgage Law). A private contract, including the arras (the deposit contract), binds only the parties. According to the notaries' own explanation, the escritura has enforceable force, is equivalent to handing over the flat, and its original is kept in the notary's protocol and after 25 years passes to the notarial college's archive (Notariado).
How an escritura differs from a private contract
Both forms record an agreement, but their force is different. A private contract is valid between the parties, whereas an escritura adds the notary's check, evidential and enforceable force, and the route into the register.
| Feature | Private contract (arras, private sale) | Escritura pública |
|---|---|---|
| Who signs | The parties, sometimes with an agent or lawyer | The parties before a notary |
| Legality check | No mandatory one | The notary answers for the substantive legality of the deed and states the means of payment |
| Enforcement on breach | An ordinary court action is needed | Enforceable force without declaratory proceedings |
| Handover of the flat | Separately, by agreement | Signing is equivalent to handover |
| Registration | Not possible | The title for an entry in the register |
| Custody | With the parties | The original in the notary's protocol, copies for the parties |
The notary's duties follow from art. 24 Ley del Notariado (the Notaries Law); the rows on enforcement and handover rest on the notaries' explanation. Under the Código Civil, contracts transferring rights in real estate must be formalised in a public document, and each party may require the other to formalise it (art. 1279 and 1280 Código Civil).
Why a buyer is vulnerable without an escritura
The main reason is third parties. Rights in real estate that are not entered in the register have no effect against third parties (art. 32 Ley Hipotecaria), and only a public document can be entered in the register (art. 3).
In practice this means a buyer holding a private contract stays outside the register's protection. Someone who bought in good faith and for value from a person entered in the register as owner, and registered their own right, keeps the purchase even if the seller's right is later challenged on grounds that were not in the register (art. 34). This protection works for the person who is registered, not for the one who first signed a private contract. How registration proceeds after signing and how long it takes is described in the article on the Registro de la Propiedad.
How the arras relate to the escritura
The arras are a private contract that fixes the price, the terms and the deposit at an early stage. The escritura completes the deal: on that day the buyer pays, the seller hands over the flat and the notary formalises the transfer of the right.
In Catalonia a deposit paid is by default treated as part of the price, and the right to withdraw by losing the deposit must be expressly agreed (art. 621-8 CCCat, the Civil Code of Catalonia). That is why the exit conditions of the deal are read in the arras, and one does not hope that the escritura will correct them. Questions for the abogado (lawyer) before signing the deposit are collected in the article on the arras contract.
What to check in the draft escritura before signing day
The notary prepares the draft escritura in advance, and it is worth receiving it a few days ahead. The order of checking is as follows.
- Check the parties: all the owners from the nota simple (the property register extract) are named as sellers, and the representatives' authority is confirmed by powers of attorney.
- Check the property: the address, area, cadastral number, parking spaces and storage rooms match the nota simple and the arras.
- Check the price and payments: the sum, the deposit already paid, the way the balance is paid. The notary must state the means of payment in the deed.
- Check the encumbrances: which of the seller's mortgages is cancelled out of the price and how that is arranged on the same day.
- Check the community's debt certificate and the allocation of costs, taxes and plusvalía (municipal tax on the increase in urban land value).
- If one of the parties will not attend, arrange a poder notarial (notarial power of attorney) in advance, not in the last week.
How the day at the notary goes is covered in the article on the day of the deal.
When a private contract does not work
A private contract does not work as a substitute for the escritura when buying a flat: without it there is no entry in the register, no protection against third parties and no enforceable force. Its role is to record the terms and the deposit before the escritura.
Nor does it suit a long gap between signing and formalisation: the longer the buyer is left with only a private contract and money paid, the longer their right is invisible in the register. If the deal drags on, that is a question for the abogado about additional safeguards. An independent price assessment before signing the arras is part of the property value analysis that DNPI produces.
Questions and answers
Is an escritura pública mandatory when buying a flat in Spain?
The contract itself is valid without it, but without an escritura the right cannot be entered in the Registro de la Propiedad. According to the notaries, the escritura is mandatory for that, so in practice a flat is not bought without one.
How does an escritura pública differ from a deposit contract?
The arras are an early-stage private contract on price, terms and deposit. The escritura is the notarial deed that completes the deal, is equivalent to handing over the flat and serves as the basis for an entry in the register.
What does registration in the register give after the escritura?
Protection against third parties: unregistered rights have no effect against them, and a good-faith buyer who registered their right keeps the purchase under the rules of the Ley Hipotecaria.
Where is the original escritura kept?
In the notary's protocol. The parties receive copies, and after 25 years the original passes to the notarial college's archive.
Can a party refuse to sign the escritura after a private contract?
Under art. 1279 of the Código Civil, each party may require the other to formalise the contract in the proper form. The consequences of refusal and the fate of the deposit depend on the text of the arras and are worked out with an abogado.
