Real estate listing agreement template for Spain, exclusive or open

A listing agreement (known in Spain as a nota de encargo or hoja de encargo) is the document in which a property owner instructs an agency to find a buyer or tenant. It sets the rules: asking price, fees and when they are due, term, whether it is exclusive and what each party does. Everything the agency does afterwards (advertising the flat, showing it, receiving offers, preparing the deposit contract) rests on that document.

There is no official national template. The content is up to the parties, within the limit set by article 1255 of the Spanish Civil Code: they may agree whatever they see fit provided it is not contrary to law, morality or public order. When the owner is a private individual selling or letting their home, consumer law also applies: a clause that was not individually negotiated and that, contrary to good faith, causes a significant imbalance to the owner's detriment can be declared unfair (article 82 of the consolidated General Consumer Protection Act).

In Catalonia, however, the listing agreement is mandatory. The Catalan Housing Act 18/2007 requires estate agents to sign it with the owner before offering a home (article 55.5.b) and prohibits advertising third-party properties without it (articles 55.6 and 58.5).

Catalan law lists the minimum content (article 55.6 of Act 18/2007). Outside Catalonia it is not mandatory, but it is the best checklist available for any listing agreement:

• Identity of the agent and their estate agent register number.
• Identity of the owners and, where applicable, their representative.
• Term of the agreement and description of the transaction.
• Identification of the property with its Land Registry details, charges and encumbrances of any kind, and its protection scheme if it is subsidised housing.
• Asking price.
• Relevant legal issues the owner must disclose, especially pending court proceedings related to the property.
• Agent's fee (percentage of the price or fixed amount) and payment terms.
• Rights and obligations of the parties and powers granted to the agent.

Write the fees so that nobody can read them two ways: percentage or fixed amount, whether VAT is included or added, which price they are calculated on (asking or final) and when they are due (on signing the deposit contract, the deed of sale or the lease). If the owner must pay even when someone else closes the deal, say so expressly and explain it before signing.

Two legal limits to bear in mind. In residential lettings, property management and contract formalisation costs cannot be passed on to the tenant, directly or indirectly (article 20.2 of the Urban Leases Act). And in Catalonia an agent cannot charge both parties for the same transaction unless expressly agreed (article 55.6.i of Act 18/2007).

The law sets no term: the parties agree it. What matters is that it is specific (six months, not "until sold") and that, if it renews automatically, the owner can stop it with reasonable notice. Avoid exclusives that renew themselves with no clear way out.

Many agencies add a tail period: if, after the agreement ends, the owner closes the deal with someone the agency introduced, the fees are due. For that clause to be worth anything, the agency must be able to prove who introduced whom. That is what the viewing form is for.

Whether a clause is unfair is decided by a judge case by case, looking at the service and all the circumstances at signature (article 82.3 of the consolidated Act). There is no closed list for listing agreements, but the law does identify clauses that are always unfair: those that make the contract depend on the business's will, limit consumer rights, create a lack of reciprocity or are disproportionate (article 82.4). With that in mind, look closely at:

• Penalties for terminating the agreement far higher than the fees that would have been earned.
• Fees due even if the transaction is never signed for reasons beyond the owner's control.
• Automatic renewals with no reasonable notice or no clear way to end the agreement.
• Any waiver by the consumer of the right of withdrawal, or penalty for exercising it: these are null and void (article 102.2).

Many listing agreements are signed at the owner's home, on the day the agent visits to take on the property. If the owner acts as a consumer (an individual acting for purposes outside their trade or profession, article 3) and the contract is signed off the agency's premises, the rules for off-premises contracts apply (article 92.2). The law presumes that every contract signed off-premises is subject to them, and it is up to the business to prove otherwise (article 92.4).

In that case the owner may withdraw within fourteen calendar days without giving reasons or paying anything (article 102); for service contracts the period runs from the day of signature (article 104.a). If the agency fails to inform the owner of this right, the period is extended by twelve months (article 105). If the owner wants the agency to start work straight away, they must request it on a durable medium (article 99.3) and, if they later withdraw, they pay only the proportionate part of the service provided (article 108.4). They can use the model form in Annex B of the Act or any other unequivocal statement (article 106). The exclusion in article 93.e refers to contracts for the acquisition or transfer of real estate, not to the brokerage service; to be safe, inform of the right of withdrawal whenever you sign off-premises with a private owner. The template above adds the clause and the form when you select that option.

When collecting the owner's data, the agency must inform them at that moment of who the controller is and how to contact them, the purposes and legal basis, recipients, retention period, their rights and their right to complain to the supervisory authority (article 13 of the General Data Protection Regulation). The usual legal basis is performance of the contract (article 6.1(b)). If you also want to send other offers, ask for separate consent.

To operate as an estate agent with premises in Catalonia you must register with the Catalan Estate Agents Register, which is public, administrative and mandatory, is managed by the Catalan Housing Agency and is governed by Decree 12/2010 of 2 February (official procedure page). The register issues a badge with a unique number that must appear on the agency's plaque, stationery and advertising, and that number is one of the mandatory items of the listing agreement. The law also requires premises open to the public (or a physical address when operating remotely), professional qualifications, a guarantee for amounts received and liability insurance (article 55.3), and requires agents to check ownership and registered charges before signing any document with third parties (article 55.7). Failure to register does not affect the validity of contracts (article 56.4).