Investment approach
Exclusive or open agency agreement: what changes for the buyer
An exclusive agreement means one agency for the whole term of the instruction; an open one allows several intermediaries. Who can speak for the seller and how the buyer avoids losing the terms.
An exclusive agreement (exclusiva) means the seller works with one agency for the term of the instruction; an open agreement allows several intermediaries and a sale by the owner. In Catalonia any agency signs a nota de encargo (a written instruction) with the owner before advertising a flat, and the law requires ten mandatory items in it, including the term, the price and the fee (art. 55 Llei 18/2007, Catalonia's right-to-housing law). Exclusivity is not regulated by law: it is set by the contract between the parties.
A nota de encargo is the owner's written instruction to the agency to sell or let the property. The buyer does not sign it and usually does not see it, but its terms determine whom you negotiate with and how.
How an exclusive differs from an open agreement
The difference lies in the number of intermediaries and in who gets the fee if someone else finds the buyer. The rest follows from that.
| Feature | Exclusive | Open agreement |
|---|---|---|
| How many agencies sell | One for the whole term | Several, plus the owner |
| How it looks online | Usually one listing, or listings from one agency | One flat under different brands, sometimes at different prices |
| Whom you negotiate with | One agent | Whoever you came through, but the answer still rests with the owner |
| Risk of confusion over terms | Lower | Higher: the listings are not synchronised |
| What to ask first | Until what date the exclusive runs | Which price is current today and who confirmed it |
For the owner, the choice between these formats is covered in the article on choosing an agency to sell a high-end property. Here the question is a different one: what the type of agreement means for the buyer.
Who can agree the price on the seller's behalf
The agent passes on and discusses offers, but the price is accepted by the owner. If the relationship is built as a mandato (agency by mandate) under the Código civil de Cataluña (Civil Code of Catalonia), an agent without express authority performs only acts of ordinary administration (art. 622-23 CCCat), and acts beyond the mandate do not bind the owner until the owner approves them (art. 622-22).
The practical conclusion: an agent's verbal "the seller agrees" is not yet the seller's consent. The arras contract (reservation deposit) is signed by the owner or by a representative with a document proving their authority, and the buyer's lawyer checks that document. Whether the mandato rules apply to a specific agency agreement is for the abogado (lawyer) to decide from its text.
What a listing gives the buyer
In Catalonia a listing works as part of the seller's promise. The law forbids advertising someone else's flat without a nota de encargo (art. 58.5) and requires the agent's registry number to be shown in the advertising (art. 59.e). The main point for the buyer: details of the flat, its condition, the services and the payment terms stated in the advertising can be demanded by the buyer later, even if they are absent from the sale contract (art. 58.4 Llei 18/2007).
With an open agreement this is especially useful: different listings of the same flat show a different area, a different description of the renovation and a different price. Save every version with its date. A price discrepancy is reason enough to ask which sum the owner actually confirmed.
How to negotiate under each type of agreement
It is convenient for the buyer to follow the same sequence every time and to allow for the differences as they come up.
- Ask the agent directly whether they hold an exclusive and until what date. Agents usually answer this: their own motivation depends on it too.
- Check the registry number from the listing against the Registre d'agents immobiliaris (the register of estate agents).
- Record the listings: screenshots of every version with the date and the portal.
- Make the offer in writing, addressed to the owner through the agent, stating the price, the deadline for a reply and the terms. Ask for the reply in writing too.
- Read the hoja de visita (viewing sheet) before signing. With an open agreement one flat may be shown by several agencies, and it matters to understand what obligations the viewing sheet places on the buyer.
- Find out who pays the fee and whether the buyer is expected to pay: see the breakdown of the agency commission.
The tactics of negotiating with the seller's agent are described in the article on how a buyer's agent negotiates with a seller's agent.
When the type of agreement is no clue to the price
The type of agreement says nothing about the quality of the flat and little about the price. An exclusive does not mean the seller will not give way, and an open agreement does not mean they will. If a flat has been on the market with several agencies for a long time, the cause is more often a price above the market than the format of the instruction, and changing agency does not fix it: more in the article on why an inflated price drags out a sale.
That is why the decision rests on your own valuation based on closed deals, not on how many times the flat appears online. DNPI Capital produces such a property valuation before the offer.
Questions and answers
How do I find out whether the agency's agreement with the seller is exclusive?
Ask the agent directly; it is an ordinary question. An indirect sign of an open agreement: one flat with different agencies, with different photos and prices.
Is an open agreement better for the buyer?
Not necessarily. Competition between agencies sometimes speeds up the seller's reply, but the terms in the listings tend to diverge more and have to be checked more carefully.
Can the agent accept the buyer's price on the seller's behalf?
Only if they have express authority. Without it the consent of the seller's agent does not bind, so a reply to the offer is needed in writing from the owner or the owner's authorised representative.
What should I do if two listings of the same flat show different prices?
Save both versions and ask which sum the owner confirmed in writing. In Catalonia the buyer can demand the details from advertising even after the deal.
Does the buyer pay more under an exclusive?
The type of agreement does not by itself change who pays the agency. That is set by the agency agreement, and it should be asked about before the first viewing.
