Selling With a Spanish Estate Agent: The Agency Agreement Clauses That Catch Sellers Out

The document is called a nota de encargo, and most sellers sign it without reading it

An estate agent in Spain works under a contrato de mediación or
corretaje — often presented as a nota de encargo or
hoja de encargo. It is not regulated by a dedicated statute the way a tenancy or
an employment contract is. What binds you is what the document says, read alongside the
general rules of contract in the Civil Code and, where you are selling as a private
individual, consumer protection law.

That last point is the one sellers miss, and it is the one that changes the outcome. If
you are selling your own home rather than trading in property, you are a
consumer, and the agency is a business. The protections that follow are not
optional extras the agency can draft around.

The 14-day withdrawal right, and why it is often much longer

Under the consumer protection statute (Royal Legislative Decree 1/2007), a consumer who
concludes a contract away from the trader’s business premises has
14 calendar days to withdraw, without giving any reason and without
penalty. An agent who came to your property, valued it and had you sign at your own table
has taken an off-premises contract. So has one who signed you up at a viewing.

Two features of that right matter more than the fourteen days:

• Where the contract was concluded during an unsolicited visit to your
  home, the period is 30 days rather than 14.
• Where the trader did not inform you of the right and give you the
  withdrawal form, the period is extended by twelve months. An agreement
  signed several months ago may therefore still be one you can walk away from.

The Supreme Court has confirmed that where a seller validly withdraws, the agency
cannot then demand its fee — subject to the qualification below about work already
done and exploited.

Exclusivity: what you are actually giving up

An exclusivity clause means that for its duration you may not instruct another agent,
and in many drafts it also means that a sale to a buyer you found yourself still
triggers the commission. Read that clause specifically. There is a real
difference between:

• exclusive agency — you may not use another agent, but a genuinely
  private sale is outside the agreement; and
• sole selling rights — the commission is due on any sale in the period,
  including to your own neighbour.

Spanish drafts do not always use these labels, and the heading on the document is not
what decides it. What decides it is the operative clause. If the wording is ambiguous, that
ambiguity is generally not resolved in favour of the party that drafted it.

Check the duration and the renewal too. Automatic
tacit renewal for further periods unless you cancel in writing some weeks in advance is
common, and it is how a three-month instruction becomes a year.

When is the commission actually earned?

This is where most disputes sit. The agent’s entitlement generally arises when the sale
is concluded through their intervention — they produced the buyer and the transaction
happened. Around that core, three situations recur:

• You decide not to sell after all. Whether a fee is owed depends on
  what the document says and on how far the agent had got. A clause saying the commission
  falls due merely on the agent presenting any willing buyer, regardless of whether
  you proceed, is the clause to look for before you sign, not after.
• The buyer came from the agent, but bought after the agreement ended.
  Many drafts carry a tail or “protected buyer” period. Its length and whether the agent
  must have registered the introduction in writing are the operative details.
• Two agents both claim to have introduced the same buyer. The written
  record of who introduced whom, and when, decides it — which is why visit sheets and
  dated emails matter to a seller as much as to a buyer.

Clauses that may not survive scrutiny

Because you are a consumer, terms that were not individually negotiated and that create
a significant imbalance to your detriment, contrary to good faith, can be held abusive and
struck out — the rest of the contract continuing without them. Candidates we see:

• a penalty payable if you withdraw the instruction that bears no relation to the work
  actually done;
• commission on a sale completed long after the agreement ended, with no tail period
  stated or an open-ended one;
• automatic renewal with a cancellation window so short it is easily missed;
• a fee due on an offer at a price you never agreed to accept.

Whether a specific clause is abusive is decided on the clause and the circumstances.
The point is that an unfavourable term is not automatically an enforceable one.

What to do, in order

• Before signing: ask for the document to take away. An agency
  unwilling to let you read it overnight has told you something useful.
• Check three things: is it exclusive and in what sense; how long does
  it run and how does it renew; and precisely when does the commission fall due.
• If you have already signed and it was not at the agency’s office,
  work out the date. If you were never given written information about withdrawal, the
  period may be far longer than you assume.
• Withdraw in writing, in a way that leaves proof of the date. Email
  with acknowledgement, burofax, or the agency’s own form.
• Keep the paperwork on introductions — who brought which buyer,
  and when. It is the evidence in a commission dispute.

If you are at the stage of assembling documents rather than choosing an agent, our
complete
guide to selling property in Spain sets out the seven steps from listing to the final
tax filing.

Frequently asked questions

I signed with the agent at my house. Can I cancel?

Probably, and without paying. A contract concluded away from the trader's business premises gives a consumer 14 calendar days to withdraw with no reason and no penalty, and 30 days where it was signed during an unsolicited visit to your home. Signing at your own property, or at a viewing, is off-premises.

The agency never mentioned any right to cancel. Is it too late now?

Not necessarily. Where the trader failed to inform the consumer of the right of withdrawal and provide the withdrawal form, the period is extended by twelve months. An agreement signed several months ago may still be within time. The starting point is the date you signed and what written information you were given.

Do I owe commission if I find the buyer myself?

It depends on the wording. Under a clause giving the agency sole selling rights, commission can be due on any sale during the period, including to a buyer you found. Under a narrower exclusivity, a genuinely private sale may fall outside it. The heading on the document does not decide this; the operative clause does.

I changed my mind about selling. Does the agent still get paid?

That turns on the agreement and on how far the agency had taken things. Some drafts make the fee fall due once the agency presents a buyer willing to buy on the stated terms, whether or not you proceed. Others tie it to completion. The Supreme Court has held that where a seller validly exercises a right of withdrawal the fee cannot be demanded, subject to the agency's earlier work not being exploited.

Can the agency charge a penalty if I take the property off the market?

It can include such a clause, but a penalty that bears no relation to the work actually carried out, in a contract you did not individually negotiate, is a candidate for being held abusive and struck out, with the rest of the contract continuing. That assessment is made on the clause and the circumstances.

Two agencies say they introduced the same buyer. Who do I pay?

Whichever can show the introduction that led to the sale, which in practice means the dated written record: visit sheets, emails, registered introductions. Paying both is not the answer, and paying the wrong one does not discharge the other. Take advice before paying either where the claims genuinely overlap.

This article provides general guidance only and does not constitute legal advice. Whether a particular clause binds you depends on its wording and on how the agreement was signed. Please obtain advice specific to your circumstances before acting.