When a Seller Backs Out: Navigating the Promesa de Compraventa in Ecuador

As an Ecuadorian lawyer with extensive experience advising the expat community, particularly in Cuenca and the surrounding Azuay province, I have seen firsthand the distress caused when a real estate deal goes sour. A common and particularly troubling scenario is when a seller, after signing a Promesa de Compraventa (Promise to Purchase Agreement), attempts to back out. This action leaves buyers feeling legally exposed and financially vulnerable. However, Ecuadorian law is not silent on this matter. The legal framework provides clear and forceful remedies for the aggrieved buyer. This guide will provide an expert-level breakdown of your rights and the precise steps to take to enforce them.

Understanding the Promesa de Compraventa: A Legally Ironclad Commitment

Before exploring remedies, it is imperative to understand the legal gravity of a Promesa de Compraventa in Ecuador. This is not a mere letter of intent; it is a binding contract. For it to be legally enforceable, it must meet the strict requirements outlined in Artículo 1570 of the Ecuadorian Civil Code (Código Civil). This includes that the agreement must be in writing, the future contract must be legally valid, a deadline for its execution must be set, and the future contract must be sufficiently specified.

For maximum legal protection—a step often missed by those without seasoned local counsel—the Promesa de Compraventa should be elevated to the status of a public deed (escritura pública) before a Notary Public. This provides incontrovertible proof of the agreement's existence and terms, making it significantly easier to enforce in court. A simple private document with notarized signatures (reconocimiento de firma y rúbrica) is valid, but an escritura pública gives you a direct path to certain legal actions.

Key elements of an enforceable Promesa de Compraventa include:

Identification of the Parties: Full names, cédula or passport numbers, marital status, and precise addresses.
Exact Description of the Property: The description must match the official records, including the property's clave catastral (cadastral key number) and the details from the Certificado de Gravámenes (Certificate of Liens and Encumbrances).
The Agreed Price: The total purchase price and a detailed payment schedule.
The Arras (Earnest Money) Clause: This is a critical component. The legal implications of the arras are defined by Article 1805 of the Civil Code.
The Deadline (Plazo): A specific, non-negotiable deadline by which the definitive Escritura de Compraventa (Deed of Sale) must be signed.
A Penalty Clause (Cláusula Penal): A sophisticated promesa will include this clause, which specifies a pre-agreed financial penalty for non-compliance, often providing a more straightforward remedy than relying on the default arras provisions alone.

When a promesa is correctly executed, a seller's withdrawal is not a simple change of mind; it is a contractual breach with significant legal consequences.

When the Seller Retreats: Your Legal Avenues

If a seller communicates their intent to abandon the agreement, your response must be swift and strategic. Ecuadorian law provides powerful tools, but they must be wielded correctly.

1. Review Your Promesa de Compraventa for the Arras Clause

Your first action is to dissect the promesa with your attorney. The nature of the arras clause is paramount:

Arras Penitenciales (Penitential Earnest Money): This is the "get out of jail" clause. It explicitly allows either party to withdraw, but at a cost. If the seller withdraws, they must return the arras you paid and an equal amount as a penalty (i.e., you receive double your deposit). This is your sole remedy in this case.
Arras Confirmatorias (Confirmatory Earnest Money): This serves as proof of the contract and part of the down payment. It does not give the seller the right to withdraw by simply forfeiting a penalty. If your contract has this type of arras (or is silent on the matter, which defaults to confirmatory), you have two powerful options: sue for damages or force the sale.

2. Initiate a Formal Requerimiento Notarial

Before litigation, the first official step is often to have your lawyer send a requerimiento notarial. This is a formal demand delivered by a Notary Public, ordering the seller to appear at a specified notary's office on a set date and time to sign the definitive deed of sale. This action serves two purposes:

It demonstrates your good faith and willingness to complete the transaction.
It creates a formal, public record of the seller’s non-compliance (constancia de incumplimiento), which is powerful evidence if you proceed to court.

Hyper-Specific Detail: A common mistake in Cuenca is simply calling or emailing the seller. An official requerimiento notarial is a formal legal step. The Notary will create a document called an acta de constancia, which becomes a key piece of evidence proving you fulfilled your obligation and the seller failed to appear. This document is crucial for a successful lawsuit.

3. Legal Action: Forcing the Sale or Claiming Damages

If the seller ignores the requerimiento, you must proceed with a lawsuit. The legal process is governed by the Código Orgánico General de Procesos (COGEP).

a) Action for Specific Performance (Acción de Cumplimiento de Contrato)

This is your most powerful remedy. You can ask a judge to legally compel the seller to complete the sale. If the promesa was executed as an escritura pública, you can initiate a faster procedimiento ejecutivo. If the judge rules in your favor and the seller still refuses to sign, the judge has the authority to sign the definitive deed of sale on the seller's behalf, effectively transferring the property title to you. This is a remedy many are unaware of, but it is a cornerstone of contractual enforcement under Ecuadorian law.

b) Action for Termination and Damages (Acción de Resolución de Contrato más Daños y Perjuicios)

Alternatively, you can sue to formally terminate the contract and claim damages. This is the appropriate path if the contract contains arras penitenciales or a specific cláusula penal. You will sue for:

The return of your deposit.
The contractually stipulated penalty (either double the arras or the amount in the cláusula penal).
Any additional, provable damages (daños y perjuicios), such as legal fees, rental costs incurred because the purchase failed, or fees paid for loan applications.

Essential Documentation for Legal Action

The original Promesa de Compraventa, preferably the escritura pública.
The acta de constancia from the Notary proving the seller's non-appearance.
Bank records or receipts proving payment of the arras.
Your cédula or passport.
Receipts for any additional expenses you are claiming as damages.

Expert Legal Checklist for Expats in Ecuador

Before signing any Promesa de Compraventa:

[ ] Obtain an Updated Certificado de Gravámenes: Hire your own lawyer to pull this certificate from the local Registro de la Propiedad. Do not rely on one provided by the seller or their agent. This certificate currently costs approximately $15-$20 in most cantons and is the only way to verify legal ownership and see if there are mortgages, liens, or court-ordered prohibitions against selling.
[ ] Verify Municipal Debts: Ensure the property is current on its municipal property tax (impuesto predial) by checking with the city's finance department (Tesorería Municipal). Arrears can complicate or halt a transfer.
[ ] Insist on an Escritura Pública: Do not accept a simple private contract. Elevating the promesa to a public deed provides maximum legal security and simplifies enforcement.
[ ] Define the Arras and Add a Cláusula Penal: Clearly state whether the arras are penitenciales or confirmatorias. For the strongest protection, include a separate cláusula penal with a significant, pre-agreed penalty for non-compliance.
[ ] Engage an Independent, Bilingual Attorney: This is non-negotiable. Their loyalty is to you, not to the seller or the agent.

⚠️ Legal Alert: When to Immediately Contact Your Attorney

Cease all direct communication with the seller and contact your lawyer without delay if:

The seller verbally expresses their intention to withdraw.
The deadline (plazo) for signing the final deed is approaching and the seller becomes unresponsive.
The seller proposes a "new deal" with different terms or offers a simple refund of your deposit without the legally mandated penalty. Accepting a simple refund can be interpreted as you agreeing to cancel the contract, forfeiting your right to further damages or enforcement.
You receive any legal-looking document from the seller or their representative. Do not sign anything. A common tactic is to present a finiquito (settlement agreement) that signs away your rights for a quick, but incomplete, refund.

Conclusion

A seller backing out of a Promesa de Compraventa is a serious legal breach, not a casual setback. The Ecuadorian Civil Code and procedural laws provide a robust framework to protect buyers. By ensuring your promesa is drafted correctly from the start, understanding the power of a requerimiento notarial, and knowing your right to either force the sale or claim significant damages, you can confidently defend your investment. Navigating this process requires precision and expert local knowledge. Armed with the right legal counsel, you can turn a moment of crisis into a successful enforcement of your contractual rights.