01
What is a listing agreement and what does it usually include?
The listing agreement (nota de encargo) is the document in which the owner instructs the agency to sell or let their property. It underpins the relationship: what is being instructed, on what terms and what the agency earns if the deal goes through. There is no single mandatory template across Spain, but a well-drafted mandate usually covers at least:
- Identification of the owner and the agency, and proof that the signatory is entitled to deal with the property.
- Description of the property, with its cadastral reference and known charges.
- Instructed deal (sale, letting, transfer) and asking price.
- Whether the mandate is exclusive or open, and what happens if the owner sells privately.
- Agency fees, who pays them and when they become due.
- Duration of the mandate, expiry date and how to renew or end it.
You have a starting point in our listing agreement template. Always review it with your adviser before using it, especially the exclusivity and fee clauses, which cause the most disputes.
If the agency sells homes to consumers, also bear in mind Royal Decree 515/1989: article 6 requires an explanatory price note to be available to the public, and states that the total sale price is understood to include, where applicable, the agent's fees and VAT.
Agencies in Catalonia: the Register of Real Estate Agents
In Catalonia, Decree 12/2010 of 2 February sets the requirements to work as a real estate agent and creates the Register of Real Estate Agents of Catalonia, which the Generalitat describes as public and mandatory for anyone who brokers property habitually and for a fee from an establishment in Catalonia. Registered agents must display the official badge, at least on a sign visible to the public, on stationery and in their advertising. If you work in Catalonia, your FixrOS mandate and deposit templates can carry those details from day one.
Types of deposit: penitential, confirmatory and penal
The Spanish Civil Code expressly regulates only one type of deposit. Its article 1454 says that if a deposit or earnest money was given in a sale contract, the contract may be rescinded with the buyer agreeing to forfeit it or the seller to return it doubled. These are penitential deposits (arras penitenciales): either party may withdraw from the sale by paying that price.
Legal scholarship and case law also recognise two other types, depending on what the parties agree. Confirmatory deposits are a payment on account of the price that proves the contract exists; if one party defaults, the other may demand performance or termination with damages, under article 1124. Penal deposits work like a penalty clause (article 1152): they penalise default but give no right to withdraw.
In practice, the Spanish Supreme Court interprets penitential deposits restrictively: for a deposit to be penitential, the contract must say so clearly and expressly. That is why the document should name the type of deposit and cite article 1454 when a penitential deposit is intended. In FixrOS the type is part of the document you generate, and the free deposit contract template serves as a reference.
Reservation, holding deposit and arras are not the same
Many agencies use a reservation document before the arras: the buyer pays a small amount so the agency takes the property off the market while the contract is prepared. That document should state clearly what each party commits to, what happens to the money if the owner rejects the offer and when the deposit contract will be signed. With FixrOS you generate the reservation, holding deposit and arras from the same property, with the same details, so there are no contradictions between one document and the next.
If the agency then takes on the rental management, or that of a flat bought by an investor, the Portfolio module works on the same property and the same people.
