The seller backs out: demand the house, not just the deposit
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
If the deposit was not a right to withdraw, you are not obliged to settle for double your money. Article 1124 of the Civil Code lets you choose between enforcing performance and terminating, with damages in either case, and article 1279 allows the parties to compel each other to grant the deed. The action lapses after five years and the claim can be noted at the Land Registry.
You signed a deposit contract for a home priced at 320,000 euros and paid 20,000 euros down. Your mortgage is approved and the notary is booked for three weeks' time. The seller calls to say another buyer is offering 40,000 euros more and that he will return 40,000, twice the deposit, to undo the deal. The flat suits you at that price and you cannot find anything comparable. You want to know whether you can force him to sign the deed instead of taking the money and walking away.
The case, in five lines
- What is brought
- Action to enforce the contract of sale with an order to grant the public deed, brought under articles 1124 and 1279 of the Civil Code.
- Before which court
- The Civil section of the Tribunal de Instancia (the first-instance court) where the property lies, under the ordinary form of civil proceedings where the amount exceeds fifteen thousand euros.
- Deadline
- Five years from when performance of the obligation could be demanded, under article 1964.2 of the Civil Code. In practice the useful window is far shorter.
- Who can bring it
- The buyer who signed the contract and is in a position to perform his side, and his heirs. If two people bought, both bring the claim.
- Financial risk
- Enforcing performance requires proof that you can pay the price and, if the court so orders, that you deposit it. If the property reaches a third party protected by the Registry, the claim may end up as damages only.
Not every deposit gives a right to withdraw by paying double
Article 1454 of the Civil Code provides that, where a deposit or earnest money has been given in a contract of sale, the contract may be rescinded by the buyer accepting its loss, or by the seller returning double. That is the provision the seller invokes when he calls to say he is giving you double and that the matter is closed.
But the provision describes a function; it does not attach it to every payment of money. The courts apply it restrictively and require that the intention to give the deposit that power of withdrawal appear clearly from what was agreed. Where the contract merely records an advance on the price and fixes the date for the deed, the deposit is confirmatory and does not buy a right to change one's mind.
Hence the case is decided by reading the contract word by word: whether it expressly says the parties may withdraw, whether the phrase arras penitenciales is used, whether it refers to article 1454, or whether instead firm obligations are agreed with a date at the notary. That reading is the first thing done, before any reply is sent to the seller.
Article 1124 lets you choose, and the choice is yours
Article 1124 of the Civil Code treats the power to terminate as implicit in reciprocal obligations where one of the parties fails to perform what falls to him. And it adds that the injured party may choose between demanding performance and terminating the obligation, with compensation for damage and payment of interest in either case.
The choice belongs to the injured buyer, not to the defaulting seller. The seller offering to return double does not turn that offer into the only way out. The same article also allows termination to be sought after opting for performance where performance becomes impossible, so starting by demanding the house does not close the door to claiming later.
The provision adds a nuance worth bearing in mind: the court will decree the termination sought, unless there are justified reasons allowing it to set a period for performance. And it closes by warning that all of this is without prejudice to the rights of third-party acquirers under articles 1295 and 1298 and the provisions of the Mortgage Act.
The seller can be compelled to grant the deed
Article 1279 of the Civil Code provides that, where the law requires a public deed or another special form in order to give effect to the obligations arising from a contract, the parties may compel each other to comply with that form once consent and the other requisites for validity have been given. The word that matters is compel: the form can be imposed on the party who resists.
That is the basis of the central request in the claim: an order requiring the seller to grant the public deed of sale within a period set by the court. What is sought is not compensation replacing the house, but the house itself, with the outstanding price placed at the seller's disposal at the very same moment the deed is signed.
A registry note stops the flat from slipping away
Article 42 of the Mortgage Act allows a preventive note of one's right to be sought, first of all, by anyone who claims in court the ownership of immovable property or the creation, declaration, modification or extinction of any real property right. A claim to enforce the sale with an order to grant the deed falls squarely within that first case of the article, and so the note is applied for with it.
Its usefulness is obvious here. While the case runs, a seller who already has another buyer can sign with him. The note makes the existence of the dispute public, so that anyone buying afterwards cannot claim to have been unaware, and that is why it is applied for at the same time as the claim is filed and not once the damage is done.
Five years to sue, but time works against you
Article 1964.2 of the Civil Code applies a five-year lapse period to personal actions that have no special period, running from the moment performance of the obligation may be demanded. The action to enforce a contract of sale is one of those personal actions, so on paper the buyer has a generous margin in which to decide and to act.
In practice that margin is deceptive. Every week that passes brings the seller's signature with the other buyer closer and, with it, the appearance of a third party whose rights article 1124 itself preserves. That is why the useful sequence is short: demand, fix the notary, sue and note the claim, in weeks rather than months.
How we run the case, step by step
- 1
Classify the deposit by reading the contract
We analyse the wording of the document to determine whether the deposit is penitential, and so covered by article 1454, or confirmatory. Whether you can demand the house or only collect double what you paid depends on that classification.
- 2
Demand for performance with the notary fixed
We send a burofax naming the notary, day and hour for the deed and proving that you will attend with the price available. That demand records the seller's breach and your own readiness to perform.
- 3
Notarial record of the seller's absence
We attend the notary on the appointed date and record that you appeared and the seller did not. It is the cleanest evidence of the breach and it heads off any later argument about who was willing to sign.
- 4
Prior attempt at a settlement
We document the negotiating activity required as a condition of admissibility by article 5 of Organic Act 1/2025, proposing in writing a final date for the deed with the same subject matter the claim will later have.
- 5
Claim to enforce the sale and preventive note
We file the claim seeking an order to grant the deed and, at the same time, apply for the preventive note of article 42 of the Mortgage Act, so that the dispute is on record against anyone who may wish to buy afterwards.
- 6
Enforcement of the order and handover
Once judgment is obtained, we enforce the order to grant the deed, deposit the outstanding price and secure registration in your name, also claiming the proven losses from the delay and from the higher cost of financing.
The evidence that decides the case
- The signed deposit contract, with its full wording and any annexes fixing the date for the deed.
- Proof of the transfer of the deposit, with the description entered on the payment.
- The messages or emails in which the seller invokes a better offer in order to undo the deal.
- The binding offer from the lender showing that you were able to pay the agreed price.
- The notarial record of the date fixed for the deed, showing the seller's failure to appear.
- An up-to-date registry extract for the property, with its charges and any transfers made after the contract.
What closes the door
- Accepting the payment of double the deposit and then trying to enforce the sale. That collection will be read as agreement with the way out the seller chose.
- Assuming every deposit is penitential. Article 1454 applies where that function follows from what was agreed, not to every advance on the price.
- Suing without having proved that you were in a position to pay. Whoever demands performance must show that he performs his own side.
- Filing the claim without applying for the preventive note. The flat may end up registered to a third party whose rights article 1124 expressly preserves.
- Letting months pass negotiating by phone. The lapse period is five years, but the sale to another buyer will not wait for that period to run out.
The law that applies
- Art. 1124 CC. Treats the power to terminate as implicit in reciprocal obligations where there is a breach, and lets the injured party choose between enforcing performance and terminating, with damages and interest, while preserving the rights of third-party acquirers. BOE-A-1889-4763
- Art. 1279 CC. Allows the parties to compel each other to grant the deed or other special form required by law, once consent and the other requisites for the contract's validity have been given. BOE-A-1889-4763
- Art. 1454 CC. Provides that, where a deposit has been given in a sale, the contract may be rescinded by the buyer accepting its loss or the seller returning double, a function that must follow from what the parties agreed. BOE-A-1889-4763
- Art. 42 LH. Allows a preventive note to be sought by, among others, anyone claiming in court the ownership of immovable property or the creation, declaration, modification or extinction of any real property right over it. BOE-A-1946-2453
- Art. 1964.2 CC. Applies a five-year lapse period to personal actions with no special period, running from when performance of the obligation may be demanded. BOE-A-1889-4763
- Art. 249.2 LEC. Sends to the ordinary form of civil proceedings claims exceeding fifteen thousand euros in value and those whose economic interest cannot be calculated, even approximately. BOE-A-2000-323
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Can I force the seller to sell me the house?
If the deposit was not penitential, yes, you can try. Article 1124 of the Civil Code lets the injured party choose between enforcing performance and terminating the obligation, with damages in either case, and article 1279 allows the parties to compel each other to grant the deed once consent and the other requisites for validity have been given.
How do I know whether my deposit allowed withdrawal?
The contract says so. Article 1454 describes the possibility of rescinding by losing the deposit or returning double, but that power of withdrawal must follow from what the parties agreed. Where the document merely fixes the price, the payment on account and the date for the deed, without providing that anyone may change their mind, the deposit is confirmatory and the contract binds.
The seller has already paid me double. Can I still claim?
It becomes much harder. Accepting and keeping that payment is read as acceptance of the way out the seller proposed, and it contradicts any wish to enforce performance. If you want the home, the right course is to refuse the payment, return it at once and record in writing that your choice, under article 1124, is to demand performance of the contract.
What if he sells it to someone else while the case runs?
That is the risk the preventive note guards against. Article 42 of the Mortgage Act allows it to be sought by anyone claiming in court the ownership of immovable property or the creation, declaration, modification or extinction of any real property right. Article 1124 also warns that termination is without prejudice to the rights of third-party acquirers under mortgage law.
How long do I have to claim performance?
Article 1964.2 of the Civil Code applies a five-year lapse period to personal actions with no special period, running from when performance may be demanded. That is the formal deadline, but the real window is far shorter: the longer you take to note the claim at the Registry, the more likely a third party appears whose registered position makes recovering the home harder.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.