The purchase starts before the arras are signed

In many property purchases, the lawyer appears when the buyer has already found the property, negotiated the price with the estate agent, paid a deposit and then sends me a signed arras agreement with something along the lines of: “Here you go, can you handle the purchase from here?”

You can work like that. Many transactions start this way and complete perfectly well. But once the arras have been signed, something important has changed: we are no longer completely free to decide how the purchase should be structured. There is already a contract, a price, a sum of money at stake and, usually, a completion date approaching considerably faster than it seemed when everybody signed.

That is why I prefer to get involved earlier.

Not because every buyer needs a forty-page legal audit before opening Idealista, or because every standard arras agreement prepared by an estate agent should be treated with suspicion. Quite often, a simple contract reflects exactly what the buyer and seller want. The difficulty begins when there is something less straightforward about the transaction and nobody stops to ask whether it should be dealt with before signing.

A reservation can cost considerably more than an empty restaurant table

The word “reservation” sounds commercially reassuring. You like the property, pay an amount and it is taken off the market for a while as the transaction moves forward.

Buying a property, however, is not quite the same as booking dinner. If you decide to eat somewhere else, Luigi is unlikely to sue you for the price of the risotto you never ordered. Once money changes hands under an agreement to buy a property, the consequences can be rather more substantial.

What actually matters is what the parties have agreed.

Not every document headed “reservation” or “arras” has the same legal effect, and writing ARRAS PENITENCIALES in capital letters does not magically turn an otherwise poor document into a well-designed contract. We need to know what obligations each party has accepted, what happens if somebody does not perform, how much money has been paid and under what circumstances it may be returned or lost.

This is precisely why I prefer that conversation to take place before signing. While the terms are still being negotiated, we can decide what the contract needs to say. Afterwards there may still be solutions, of course, but we are playing with cards that have already been dealt.

A standard contract may be perfectly adequate

I do not believe in rewriting contracts for sport.

I have seen very simple arras agreements prepared by estate agents, and even by the parties themselves, that were perfectly adequate for an ordinary purchase. If there are no particular issues with the property, the buyer has the funds ready, both parties can complete within the agreed timetable and the contract accurately reflects their agreement, adding another fifteen pages does not necessarily improve anything.

Things become more interesting when any of those elements is less straightforward.

The buyer may require financing. They may need additional time before certain funds become available. Some document may depend on a third party, or another step may have to take place before completion at the notary’s office. Those circumstances can be reflected in the contract if the buyer and seller agree, because this is, after all, a contract and the intentions of the parties matter.

That does not mean presenting the seller with a clause allowing the buyer to recover the deposit if Mercury goes retrograde, the bank takes longer than expected, or they wake up one morning after a matcha latte that was frankly too bitter and decide that Marbella no longer represents them spiritually. The seller has legitimate interests as well and is perfectly entitled to reject conditions that are too open-ended or uncertain.

In fact, a seller negotiating hard does not particularly worry me. Sometimes I become considerably more interested when absolutely everything seems suspiciously easy.

Twenty days, forty-five days and a purchase that never happened

I recently worked with a couple living in another EU country who wanted to purchase a property in Marbella. Part of the price was to come from private financing abroad and, on paper, there was nothing particularly extraordinary about the arrangement: the funds existed, their origin could be documented and the proposed structure was legally workable.

The difficulty was considerably less exotic: time.

The seller wanted to complete in approximately twenty days. The bank estimated that it would need around forty-five days to review the documentation and prepare the necessary banking arrangements. I recommended working on the basis of sixty, because if a bank tells me an international transaction should be ready in forty-five days, I would rather my client have enough margin for day forty-six not to become a sudden legal emergency.

The seller did not agree to extend the deadline and the purchase ultimately did not proceed.

It was not because the buyers lacked funds or because some extraordinary legal issue had appeared with the property. Quite simply, one side needed twenty days and the other needed considerably longer before it could realistically pay.

If we know that before the arras are signed, we have options. We can negotiate a different timetable, include an appropriate condition, consider another way of executing the transaction or simply accept that this particular property does not fit this particular buyer.

Once the contract has been signed, the conversation is different.

Signing first and solving the problem later is usually more expensive

Sometimes a client assumes that, if a dispute eventually arises over the arras, they can always go to court.

Perhaps they can.

But turning something that could have been dealt with during a contractual negotiation into several years of litigation strikes me as an extraordinarily expensive way of proving that you were right. Legal fees, time, uncertainty and a substantial sum of money remaining tied up do not necessarily make the experience worthwhile merely because the final judgment eventually goes your way.

The opposite can also happen. The buyer explains that they cannot continue, the seller understands the situation, returns the money and the entire matter ends with two emails and a bank receipt.

Almost anything can happen between those two extremes. Since I cannot know in advance which one we will face, I prefer to work while the parties still have room to negotiate.

The estate agent and the lawyer have different jobs

There is also no need to turn the estate agent into the villain of the story.

If several people are interested in a property and the agent tells the buyer that somebody else may take it if they do not sign quickly, that may be entirely true. Their job is to bring buyer and seller together and close the transaction, and some commercial pressure is perfectly understandable when several purchasers are competing for the same property.

The lawyer occupies a different position.

When I advise the buyer, my job is not to convince them to purchase that particular home. I may conclude that they are ready, that the contract is reasonable and that signing quickly makes perfect sense. But I may also tell them that we need another two weeks, that an important condition is missing or that, in their circumstances, I would not yet take on that commitment.

That is why, at least chronologically, I prefer the lawyer to become involved before the commercial process has already set the pace, even if lawyer and estate agent later work perfectly well together.

I do not need to choose the property for my client. I need to know that, when they find it, they are genuinely in a position to commit to buying it.

Early legal work can also strengthen the buyer’s position

There is another advantage that receives less attention.

A buyer who has already prepared the transaction can be more attractive to the seller. If their financing position is clear, they know the timetable they need, their basic circumstances have been reviewed and they can sign a reasonably straightforward arras agreement, their offer carries considerably more certainty than one from somebody who begins discovering how they intend to pay only after negotiating the price.

That can matter in a market where several buyers are competing for the same property.

Early legal work therefore has more than a defensive function. The aim is not to insert clauses everywhere so that the buyer has seventeen different ways to escape from the transaction. It is also about removing uncertainty so that, once the decision to buy has been made, the buyer can move quickly.

After the arras have been signed, I can help my client perform the contract.

Before they are signed, I can still help decide which contract is worth signing.

And we have not even talked about the property yet

Everything above concerns mainly the buyer and the contract. We have not even reached another reason why I prefer to know about a transaction before a significant amount of money is committed: the property’s own registry history.

A Spanish Land Registry extract is useful for considerably more than checking who appears as the owner and whether there is a mortgage. Sometimes a very recent transfer, several transactions within a short period, certain tax annotations or simply an unusual chronology make it sensible to obtain previous deeds and understand more clearly what has happened to that property.

None of those things automatically means that there is a problem. Quite often there will be a completely ordinary explanation. But after seeing enough transactions, you develop a certain trained instinct for knowing when an extract can be filed away quietly and when it deserves a raised eyebrow and a few more questions.

And that is also why the purchase starts before the arras are signed.