Purchase Option as Guarantee: Why the Registry Denies It and What Risk You Assume

Key data

If you use purchase options on real estate as a mechanism to guarantee loans, this resolution directly affects you. The General Directorate of Legal Security and Public Faith (DGSJFP) has confirmed, in its resolution of June 5, 2026, the denial of registration of a deed of purchase option on the undivided half of a residential property in Madrid. The reason: the transaction concealed a prohibited pact comisorio under the Civil Code.

This is not an isolated case. The resolution cites numerous precedents from 2024 and 2025 in the same sense, which shows that the DGSJFP applies a consolidated and systematic doctrine against these structures.

What does this resolution establish?

The property registrar of Madrid no. 18 detected that the purchase option presented for registration was not an autonomous transaction, but a concealed mechanism for the creditor to appropriate the property in case of non-payment of the loan. The DGSJFP confirmed the negative qualification for three specific reasons:

• The option could only be exercised in case of non-payment of the loan guaranteed by the property. That is, the option was not free: it was conditioned on the debtor not paying.
• The agreed price was below the market value of the property. The creditor would acquire the property below its real price.
• The amounts delivered absorbed almost all of the property's value. The debtor lost practically all of the value of their property without receiving the difference.

The Civil Code expressly prohibits the creditor from appropriating assets given as guarantee through indirect transactions. The only admitted exception is that there is an objective valuation of the property and that there is no unjust patrimonial imbalance for the debtor.

Economic and operational impact

The impact of this resolution is not only legal: it has direct economic consequences for those who structure financing transactions with real estate guarantee through purchase options.

• Transaction without registry registration: A purchase option not registered is not enforceable against third parties. If the owner sells or encumbers the property to a third party in good faith, the creditor loses their position.
• Risk of nullity of the transaction: If a court finds a pact comisorio, the transaction can be declared null in its entirety, with the consequent obligation to return amounts.
• Cost of restructuring: Transactions already signed under this scheme must be reviewed and, if necessary, reformulated with new deeds, expert valuations and additional notarial and registry costs.
• Consolidated doctrine with precedents from 2024 and 2025: The DGSJFP is not improvising. Anyone who designs new transactions ignoring this doctrine assumes a calculable legal and economic risk.

Who does it affect?

• Real estate investors who structure purchase transactions with financing linked to options on the property.
• Private lenders and debt funds that use purchase options as an accessory or principal guarantee for loans.
• Owners in financial difficulties who sign purchase options on their home in exchange for immediate liquidity.
• Notaries and legal advisors who draft or supervise this type of deeds.
• Real estate investment companies (REITs and similar vehicles) that incorporate this type of structures in their portfolio.
• Wealth managers and family offices that advise financing transactions with real estate collateral.

Practical example

Imagine the following transaction, which replicates the scheme denied in this resolution:

A private lender grants a loan of €150,000 to an owner who has a property valued at €200,000. As guarantee, the owner signs a purchase option on the property in favor of the lender for a price of €160,000. The option can only be exercised if the owner does not repay the loan within the agreed period. The amounts delivered (€150,000 of the loan plus interest) absorb practically all of the property's value.

Result according to the DGSJFP doctrine:

• The registrar denies registration of the purchase option upon detecting that it is conditioned on non-payment of the loan.
• The price (€160,000) is below market value (€200,000), generating a patrimonial imbalance of €40,000 to the detriment of the owner.
• The amounts delivered absorb almost all of the property's value, without the owner receiving the difference.
• Without registration, the lender has no registry protection. If the owner sells to a third party, the lender loses the guarantee.

For the transaction to be registrable, it would be necessary, at a minimum: to accredit an objective and independent valuation of the property, to set an option price that does not generate unjust patrimonial imbalance, and to delink the exercise of the option from non-payment of the loan.

What should investors and lenders do now?

1. Audit your current transactions: Review if you have signed purchase options whose exercise is conditioned on non-payment of a loan. These are the most exposed to being qualified as a prohibited pact comisorio.
2. Verify the agreed price against market value: If the option price is below the real value of the property and the amounts delivered absorb almost all of that value, the transaction replicates the scheme denied by the DGSJFP.
3. Incorporate objective and independent valuations: Any new transaction must include an accredited expert appraisal that justifies the price and rules out patrimonial imbalance.
4. Delink the option from the loan: If the purchase option and the loan are separate transactions, document them independently and ensure that the exercise of the option does not depend on non-payment.
5. Consult with a specialized lawyer before signing: The DGSJFP doctrine in this matter is consolidated and has precedents from 2024 and 2025. Ignoring it has a real economic and legal cost.
6. If you already have a denied transaction, consider restructuring: A denied deed can be reformulated, but it requires new negotiation, new deeds and new registry and notarial costs.

Official source

Consult complete regulation in official source

Notice: This article is for informational purposes only and does not constitute legal advice. For specific decisions, consult a qualified professional. Source: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2026-21415