Notary Refuses Private Deposit: Why You Must Use a Gestoría

Notary Refuses Private Deposit: The Process Nobody Wants to Sign

A buyer calls the notary they have chosen to sign a deposit agreement for an apartment, only to face a wall: "this is a private contract between the parties; go to a gestoría." This scenario, repeated in every transaction between private individuals, exposes a practical gap: the deposit agreement has no mandatory official venue, and whoever signs it assumes the risk of doing it incorrectly. The typical operation described here—an apartment from a private seller advertised on a real estate portal, 5,000 euros signal, and a seller with a notarial power of attorney managing from abroad—is the setting where good faith and incompetence most often collide.

What are deposits and why does the notary wash his hands

The notary is correct on formal grounds: deposits are private contracts for a promise of sale with a deposit clause, and there is no such thing as an official "deposit contract." What the public calls deposits are actually several distinct figures—penitential, confirming, and penal—and choosing the wrong clause completely changes who loses the money if the deal falls through. Hence, the most repeated advice is to hire a lawyer to draft the document, rather than using the first template found online.

The alternative offered by gestorías is legitimate but limited: they process, they do not litigate. Signing with a gestoría is equivalent, in the words of those who have experienced it, to signing at a bar counter. A notary can indeed witness the delivery of funds and the counter-performance, and even hold the money in escrow, but it is a matter of finding one willing to do so: not all offices offer this service.

The case: a seller who changes his mind about deposits in 24 hours

The story opening this discussion has all the ingredients of a poorly structured operation. An apartment viewed in a rush alongside other interested parties, a son claiming to act with a notarial power of attorney from a father residing in Russia, documentation sent via chat, and suddenly a script change: the seller who initially wanted deposits before a notary announces he will not sign anything, that deposits are not mandatory, and that one should proceed directly to the deed. All within a day.

This is when the buyer starts asking questions they should have asked beforehand. The tax residency status of the seller determines whether the buyer must withhold 3% of the price under Non-Resident Income Tax (IRNR) and who pays the municipal capital gains tax. When the transferor does not reside in Spain, the law designates the buyer as a substitute liable party: if the seller leaves and does not pay, the problem lands on the acquirer. Some argue it is sufficient to deduct this amount from the price before signing; against this weighs the fact that the calculation requires the acquisition date, the cadastral land value, and the transmission value, data the seller must provide.

What to check before handing over a euro

The Property Register note is the first filter, and it is advisable to request it yourself—costing about 11 euros at the electronic registry office—to contrast it with the one sent by the other party. The second is the notarial power of attorney of the signatory: if not shown before the deposits, it will hardly appear on the day of the deed. And the third is the contract: it must declare the property free of encumbrances, occupants, tenants, and hidden defects. A case mentioned in the discussion illustrates this: an apartment with three mortgages and a lien that was lifted only on the day of signing, with the bank ensuring immediate payment.

The buyer demanding guarantees is not being paranoid. They are doing what anyone would do who risks five thousand euros on a piece of paper.