Everything You Need to Know About the Right of Purchase Option in Catalonia

2 January, 2025
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Real Estate
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MES Advocats


The right of purchase option allows its holder to acquire a property under pre-agreed conditions, providing security to both the grantor and the option holder. In this article, we’ll explore the regulation of the right of purchase option as outlined in the Civil Code of Catalonia.

What Is the Right of Purchase Option?

The right of purchase option is a voluntary real right of acquisition that allows its holder to buy a property under the terms established in the constitutive title. This right differs from other legally regulated acquisition rights, such as legal pre-emption or withdrawal rights, as its creation depends on an agreement between the parties.

In Catalonia, this right is regulated under Articles 568-5 and following of the Civil Code of Catalonia. Examples of voluntary acquisition rights include the conventional pre-emption and the sale with redemption clause, whereas rights like the withdrawal right in favor of neighboring landowners arise directly from the law. Unlike legal rights, voluntary acquisition rights must be expressly established by the parties involved.

Aspects regulated in the right of purchase option in the Civil Code of Catalonia

The regulation of the right of purchase option in the Civil Code of Catalonia covers several key aspects:

Constitution: Methods of establishing the right.

Content of the constitutive title: Essential information that must be included.

Extinction: Causes for the termination of the right.

Duration: Time limits for its validity.

Transferability: Whether the right or the subject property can be transferred.

Preservation and loss of the property: Rights and obligations regarding property maintenance.

Exercise of the right: Procedure for the option holder to acquire the property.

Below, we analyze each of these aspects in greater detail.

How Is the Right of Purchase Option Established?

The right of purchase option can be established through any title, whether for consideration (e.g., via payment of a premium) or gratuitously. It can be formalized in either a public or private document. However, if it is to be recorded in the Land Registry, it must be executed as a public deed.

Recording the right in the Land Registry is advisable for several reasons:

Publicity and legal certainty: Registration makes the right enforceable against third parties.

Ease of enforcement: In case of future disputes, having a registered public document reduces legal uncertainties.

However, the requirement for a public deed to establish real rights in Catalonia has been debated. Some legal experts argue that this requirement might contradict the general principle of form freedom in Spanish law.

Minimum Content of the Constitutive Title

The constitutive title of the right of purchase option must include certain essential elements:

1. Duration: By default, if not specified, the duration is 4 years. The maximum duration is 10 years, but extensions are allowed, provided each does not exceed the 10-year limit.
2. Exercise Period: This is separate from the overall duration and refers to the period within which the right must be exercised once the option holder has expressed their intent.
3. Consideration: This can be monetary or non-monetary and must include criteria for determination.
4. Premium: If applicable, the amount and payment details must be specified. Note: The premium will only count towards the purchase price if explicitly agreed upon.
5. Grantor’s Address: Essential for future notifications.
6. Proof of Payment: Especially relevant if unilateral exercise of the right is agreed upon.

Duration and Extensions of the Right

The right of purchase option has a maximum duration of 10 years. If it is part of another legal arrangement, such as a lease, its duration cannot exceed that of the principal arrangement. For example, if the lease lasts 5 years, the purchase option cannot exceed that term.

Transferability of the Right

The right of purchase option is transferable unless it was granted personally to the holder. For example, a right granted exclusively to a person’s heirs would be non-transferable to third parties outside that relationship.

The subject property can also be transferred without the option holder’s consent, as the new owners assume the grantor’s obligations.

Preservation and Loss of the Property

Grantors of the right are required to maintain the property diligently and are liable for damage caused by intent or negligence. Option holders also have the right to inspect the property to verify its condition.

In the event of partial loss of the property:

The option holder may choose to exercise the right over the remaining portion or desist.

If the loss is attributable to the grantor, they must compensate for damages and refund any paid premium.

As for improvements or pending yields at the time of exercise, these belong to the option holder unless otherwise agreed.

Exercising the Right of Purchase Option

Exercising the right involves:

1. Payment of the price or consideration.
2. Delivery of possession by the grantors.

If there are encumbrances recorded after the registered right, the price must be deposited with a notary to ensure the rights of the encumbrance holders are protected.

The option can be exercised unilaterally by the holder if:

This was agreed upon during the establishment of the right.

The holder possesses or can acquire possession of the property through the exercise of the right.

Notification and payment guarantee conditions are met.

Additional Obligations When Exercising the Right

Exercising the right also entails acquiring the property under the same legal conditions as those existing at the time of establishment. Additionally, rights incompatible with the registered right are extinguished, provided the purchase option is real and recorded.

Practical Advantages and Considerations

The right of purchase option offers significant benefits for both the grantor and the option holder. For the option holder, it provides a guarantee of future acquisition, while for the grantor, it offers immediate income security through the premium. However, it is essential to ensure the constitutive title is clearly drafted and complies with legal requirements to avoid future disputes.

At MES Advocats, we have over 15 years of experience advising our clients on real estate law. If you need more information or assistance with drafting or reviewing a contract that includes a right of purchase option, feel free to contact us through this link.

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