Purchase option rejected for concealing loan: what owners and investors must know

Key data

A purchase option signed before a notary can be rejected at the Property Registry if the registrar detects that it actually conceals a mortgage loan. That is exactly what happened in El Campello, and the Resolution of March 19, 2026 from the General Directorate of Legal Security and Public Faith confirms it and reinforces it as applicable doctrine.

The resolution is not an isolated case: it establishes clear criteria on what indicators turn a purchase option into a concealed pactum commissorium, with direct consequences for any financing transaction that uses this instrument as a guarantee.

What does this regulation establish?

The registrar of El Campello refused to register a deed of purchase option on housing. He detected three indicators that, combined, revealed that the transaction was not a real purchase option, but a disguised mortgage loan:

• The option premium coincided exactly with the principal of the unpaid loan. That is, the money that the option holder paid as the "price" of the option was the same amount the owner owed on a previous loan.
• The option holder had irrevocable power to unilaterally set discounts on the exercise price. He could determine alone how much he paid when exercising the option, without the owner's intervention.
• The option holder could exercise the option without the intervention of the grantor. The owner was completely excluded from the execution of the contract.

These three elements violate Article 1256 of the Civil Code, which prohibits the performance of a contract from being left to the discretion of a single party. Furthermore, they constitute what is legally termed a concealed pactum commissorium: the creditor keeps the debtor's property if the debtor does not pay, something that Spanish law expressly prohibits.

The resolution also notes that, since this is actually a financing transaction, it should comply with:

• Law 5/2019, on real estate credit contracts — which regulates mortgage loans and protects consumers.
• Law 2/2009 — which regulates contracting with consumers for mortgage loans or credits.

The underlying message is clear: the registrar can and must qualify the underlying transaction when there are indicators of simulation or fraud against mandatory consumer protection rules. Notarial form does not shield the transaction from registry control.

Economic and operational impact

For real estate investment companies operating with "sale and leaseback" structures or alternative financing using purchase options as guarantees, this resolution represents a direct operational risk:

• Denial of registry registration: without registration, the option is not enforceable against third parties. The investor loses the legal protection sought.
• Nullity of the transaction: if the pactum commissorium is proven, the contract can be declared null, with the consequent obligation to restore the benefits received.
• Application of real estate credit regulations: if the transaction is reclassified as a loan, the informal lender is subject to Law 5/2019, with obligations for pre-contractual information, appraisal, European standardized information sheet (FEIN) and other requirements that, if not met, can result in the nullity of the transaction.
• Reputational and regulatory risk for notaries who authorize deeds with these characteristics without warning of the risk of negative qualification.

Who does it affect?

• Homeowners with debts who have signed or are considering signing a purchase option in exchange for immediate liquidity: they must know that this structure can be null and does not protect them against loss of the home if there is a pactum commissorium.
• Real estate investment companies that use purchase options as a financing or guarantee mechanism: their transactions may be left without registry registration and declared null.
• Funds and investment vehicles that acquire portfolios of this type of assets: the legal risk of the underlying transactions can contaminate the portfolio valuation.
• Notaries who formalize these deeds: the resolution reinforces their duty to warn and the possibility that the registrar will reject what they have authorized.
• Legal and financial advisors who structure alternative financing transactions on residential real estate.

Practical example

An owner has a debt of €80,000 with an informal entity. To "settle it," he signs a deed of purchase option on his primary residence. The option holder pays €80,000 as the option premium — exactly the amount of the debt. Furthermore, the contract grants him irrevocable power to set discounts on the final exercise price and to exercise the option without the owner having to appear.

When the option holder presents the deed at the Property Registry, the registrar detects the three indicators described in the resolution: coincidence of the premium with the principal of the debt, unilateral power to set price, and exercise without the grantor's intervention. He applies the doctrine of the Resolution of March 19, 2026 and denies registration.

The investor has disbursed €80,000 without obtaining the registry protection sought. The owner, for his part, can challenge the contract by alleging concealed pactum commissorium and request restoration of the home.

What should companies do now?

1. Audit current transactions: review all purchase options on housing in portfolio and verify if they present the three indicators identified in the resolution (coincidence of premium with debt, unilateral power of price, exercise without grantor's intervention).
2. Evaluate reclassification risk: if any transaction can be reclassified as a mortgage loan, analyze whether it complies with Law 5/2019 and Law 2/2009. If it does not comply, the risk of nullity is real.
3. Redesign contractual structures: purchase options used as guarantees must be structured so that the price is determined objectively and bilaterally, and the grantor has effective intervention in the exercise.
4. Consult with the registrar before signing: in complex transactions, prior consultation with the registry can prevent denial of registration and associated costs.
5. Inform affected owners: owners who have signed this type of contract must know their rights, including the possibility of challenging the contract for concealed pactum commissorium.

Official source

Consult complete regulation at 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-2026-14306