View Full Version : What happens if the buyer cannot obtain a mortgage?

05-26-2009, 01:05 PM
We have received a deposit on our property in spain,contracts were to be signed 31 Jan 2009, as a mortgage was not secured we agreed to extend the completion time but did not agree another date,the purchaser has been refused 2 mortages, and is in the process of trying to obtain one from another bank. What is the procedure if this mortgage is refused? Thanking you for any information you can give us.

Lawbird Lawyer
05-26-2009, 02:04 PM
Dear Madam,

That will depend entirely on the wording of the Private Purchase Contract (http://www.marbella-lawyers.com/articles/showArticle/buying-property-private-spain) you drafted (or your lawyer did).

If you included a clause by which you would be able to withhold the deposit ("arras") if the purchaser was unable to complete for whatever reason, such as lack of finance, you are entitled to withhold it (art. 1454 CC).

If your deposit contract has no such clause then you will have to refund them the deposit they paid in full.

In Spain the deposit contract needs to be professionally drafted (by a lawyer) so the vendor is able to withhold the deposit legally. Otherwise you risk being challenged at court and you will most likely lose being sentenced to pay the other parties' legal fees as well.