I have to confess—sometimes estate agents drive me crazy, especially here in my hometown of Barcelona. Don’t get me wrong; there are plenty of reliable and professional agents. But lately, probably due to the rising property prices in the city, I’ve noticed a recurring practice that really frustrates me. I’m talking about the buyer’s right to make their property purchase subject to obtaining finance.

Article 621-49 of the Catalan Civil Code states:

“If a contract of sale includes a clause stating that all or part of the purchase price will be financed through a credit institution, the buyer may withdraw from the contract if they can provide documentary proof, within the agreed period, that the financial institution has refused to grant financing or subrogation.”

If the buyer withdraws under these conditions, the seller must return any amount already paid, including any earnest money (arras penitenciales), if applicable. At the same time, the buyer must restore the seller to the same situation as if the contract had never been executed.

The purpose of this clause is to protect buyers who commit to purchasing a property, pay a deposit (usually around 10%), and then have their mortgage application denied due to circumstances beyond their control. Of course, there are two sides to this story. On one hand, buyers need protection against a potential mortgage rejection. On the other hand, sellers want to sell their property without depending on whether the buyer secures financing.

Spanish Judges competent in Barcelona generally agree that this clause is not mandatory, but it is considered good practice. What is clear is that a buyer can only withdraw from a purchase due to lack of financing if this clause is included in the contract. This is why many sellers—and increasingly, estate agents—are removing it from sale agreements. Local buyers might be aware of the clause, but foreign buyers, like most of my clients, often aren’t. Without legal guidance, they might miss the opportunity to condition the contract on mortgage approval.

So, how can we find a balanced solution for both buyer and seller? A recent trend is to include the clause but with a time limit. For example, in a transaction I handled last week, the seller agreed to give the buyer six weeks to secure mortgage approval. If the mortgage was denied within that period, the buyer would get their deposit back. However, once the six weeks had passed, the buyer could no longer recover the deposit—even if the mortgage was later refused.

This solution still carries some risk, as six weeks may not always be enough to get a mortgage approved. But in my experience, most buyers already have a good sense of whether their application will be successful.

Subject to mortgage or not subject to mortgage? I would say yes—but ideally, within a reasonable period that safeguards the interests of both parties.