Who cancels and why?
Four common scenarios:
- You cancel without cause: depends on the deposit type (CC art. 1454). Penitential: you lose the deposit. Confirmatory or penal: damages on top.
- You cancel with cause (developer breaches): CC art. 1124. Termination with full refund + interest + damages. Trigger of the bank guarantee or insurance.
- Developer cancels without cause: termination against the buyer. Practically inexistent save for a mutual penalty clause.
- Mutual termination: amicable, with terms agreed between parties.
Cancelling for developer delay or breach
Most frequent scenario. Developer delays beyond the contractual period (plus agreed tolerance) or substantially changes the conditions (specs, surface, deadlines). The buyer can then:
- Terminate (CC art. 1124) retroactively.
- Recover all amounts paid + legal interest from each payment.
- Claim damages (alternative housing, removals, lost income).
- Trigger the bank guarantee or surety insurance (direct action, without waiting for judgment).
Withdrawing by your own choice: the real cost
If you want to withdraw for personal reasons:
- Penitential deposit (CC 1454): you lose what was paid. It's the agreed cost, no further claim.
- Confirmatory or penal deposit: beyond the deposit, the buyer may owe damages (lost income, marketing costs).
- Contractual penalty clause: if the contract sets a penalty (e.g. 20% of price), check whether disproportionate (typically unfair — RDLeg 1/2007).
Amicable cancellation agreement
When both parties want to close without litigation, we draft a friendly cancellation agreement with:
- Partial refund of amounts paid.
- Mutual waiver of court actions.
- Registry cancellation of the contract (if registered).
- Concrete refund timeline.
Fastest route and, almost always, the most cost-effective for both sides.
Special cases: substantial project change
If the developer modifies the project during construction (changes specs, reduces surface, alters layout) it can be sufficient cause for termination without losing payments. Determined by the extent of the change; Spanish case law is generous with the buyer.
Frequently asked questions
Can I just cancel because I changed my mind?
Yes, but you lose what was paid (at least the deposit). If penitential, that's the end of it. If confirmatory, you may owe damages.
If the developer is 3 months late, can I cancel?
Difficult without an express essential-term clause. Majority case law requires 6+ months without justified cause or proven frustration of the contractual purpose.
Who pays the lawyer if I win cancellation in court?
If the judgment awards costs against the developer, they do. Without costs award, each side pays its own. We assess this before starting.