Civil and Real Estate Law

A real estate promesa de compraventa is not a minor preliminary document. In high-value transactions, it is the contract that determines who bears the risk, when each party may withdraw, how much doing so costs and what evidence will be decisive if the transaction does not close.

Before signing, paying arras or entering a real estate fiducia, it is worth understanding four things precisely: whether the promesa meets the legal requirements that make it enforceable, what type of arras is being agreed and what consequences withdrawing has, how the fiduciary patrimonio autónomo works and what it really protects, and what the full route is until the tradición is perfected with the deed and the entry in the registry. A mistake on any one of these four points can cost millions.

This guide goes through each one on the basis of the verified articles of the Código Civil, the Código de Comercio and the Código General del Proceso. At the end you will find a table of frequent disputes, a checklist of documents and the most relevant frequently asked questions for anyone who is about to sign or who already faces a dispute.

Why it is not a simple preliminary contract

Why a high-value promesa de compraventa is not a simple preliminary contract

The name can give a false impression of provisionality. The promesa de celebrar contrato is neither a draft nor a statement of intent. When it meets the legal requirements, it is an enforceable contract that binds both parties to enter into the sale on the terms and at the time agreed. Article 1602 of the Código Civil says it clearly: every contract lawfully entered into is law for the contracting parties and it cannot be invalidated except by mutual consent or on legal grounds.

In a high-value transaction, that binding force has concrete consequences. If the seller receives arras and then decides not to sell, they cannot simply return the money received: they must restore double. If the buyer pays a significant sum and then finds that the title has problems, they need to know whether they can seek performance or terminate the contract with compensation for damages, and what evidence it falls to them to produce in each case. If the property is inside a project with a fiducia and the developer does not reach the punto de equilibrio, the rules on the restitution of contributions depend on the trust agreement, not on assumptions.

The promesa is also the document that delimits the exact object of the transaction. A high-value property can change between the signing of the promesa and the deed: a registry entry may appear, an attachment, an undisclosed pre-existing mortgage, a discrepancy in floor area or a delay in lifting the charges. What happens in each of those scenarios depends on how the promesa was drafted, on which annexes form part of it and on what obligations each party expressly assumed. That is why the legal review before signing is not an additional formality; it is the investment that determines whether the transaction can be defended or terminated without paying for lengthy litigation.

When the promesa binds and when it does not

The four requirements for the validity of the promesa (CC art. 1611): the consequences of omitting one

Article 1611 of the Código Civil provides with precision that the promesa de celebrar un contrato produces no obligation at all unless four circumstances concur simultaneously. It is not enough for three to be present. They are cumulative requirements: if one is missing, the promesa does not create the obligation to enter into the promised contract. (CSJ SC2468-2018, Sala Civil)

When one of these requirements is missing, the promesa does not produce the obligation to enter into the contract. This does not automatically mean that the party who received arras may keep them, nor that the advance payments are unrecoverable, but it does mean that the route for enforcing the obligation changes and that the litigation becomes more complicated. The parties may find themselves faced with an absolute nullity of the promesa (article 1741 of the Código Civil), which the judge may and must declare even on their own motion, with consequences for their assets that depend on what each of them can prove.

Withdrawing has a precise cost

Arras: types and how each one operates (CC arts. 1859-1860); why the amount matters in high-value real estate

Arras are perhaps the most misunderstood figure in real estate contracts. In Colombia, the Código Civil governs them in articles 1859 and 1860, and their effect is not that of a simple guarantee or holding deposit: they are the price of withdrawal. The party who handed them over may withdraw by forfeiting what they gave; the party who received them may withdraw by returning double. This is precise, bilateral and automatic when the figure operates in accordance with the law.

But not every initial payment is arras de retractación. The Colombian real estate market uses several names that are sometimes confused: holding deposit, payment on account of the price, down payment, arras confirmatorias, arras de retractación, good-faith guarantee, cláusula penal. Each one has different effects and, if the contract mixes them or names them ambiguously, the ground is set for a dispute about what happens when one party pulls out.

Article 1860 adds an important temporal element: if the contracting parties did not set a period for withdrawal, no withdrawal shall be possible after two months from the agreement, nor after the escritura pública of sale has been granted or delivery has begun. In practice, this means that the window for withdrawal has clear limits, and anyone who seeks to exercise it outside that period will not be able to do so.

In high-value transactions, the amount of the arras matters for two reasons. First, because the figure determines the real cost of withdrawing: if the arras are five percent of a property worth two billion pesos, withdrawing costs one hundred million for the buyer or two hundred million for the seller. Second, because the amount can shape the litigation strategy: if the penalty is disproportionate to the actual harm, the judge has tools to moderate it, but that argument adds time and cost to the proceeding.

The shield that does not protect against everything

The real estate fiducia: how it works and why it protects the buyer as much as the seller (Cco arts. 1226 and 1233)

The fiducia mercantil is a legal transaction by which one person, called the fiduciante or fideicomitente, transfers one or more assets to another, called the fiduciaria, who undertakes to administer or dispose of them in order to fulfill a determined purpose for the benefit of the party that constitutes it or of a third party called the beneficiario. So provides article 1226 of the Código de Comercio. Only credit institutions and trust companies specially authorized by the Superintendencia Financiera may have the status of fiduciarios.

The central protection of the real estate fiducia lies in article 1233 of the Código de Comercio: the assets held in trust must be kept separate from the rest of the fiduciario's assets and from those pertaining to other fiduciary transactions, and they form a patrimonio autónomo devoted to the purpose contemplated in the instrument that created it. This means that if the construction company goes bankrupt, the money you paid that entered the patrimonio autónomo does not form part of the developer's assets and cannot be pursued by its ordinary creditors. The patrimonio autónomo is legally separate.

In addition, article 1238 of the Código de Comercio reinforces that protection: the assets that are the object of the fiduciary transaction cannot be pursued by the creditors of the fiduciante, unless the claims predate the constitution of the fiduciary transaction. The creditors of the beneficiary may pursue only the returns those assets yield them. This makes the fiducia (the Colombian fiduciary trust, not an Anglo-American trust) a real barrier against situations of insolvency of the developer.

However, the fiducia does not guarantee everything. Its scope depends on what the trust agreement says, on the disbursement instructions and on the type of fiduciary transaction used. There are important differences between the modalities:

• Pre-sale fiducia: it manages the buyers' funds until the project's punto de equilibrio is met. If it is not reached, the funds are restituted as agreed in the instructions.
• Administration and payments fiducia: it receives and disburses funds in accordance with construction milestones, but it does not guarantee the quality of the property or the developer's performance.
• Security fiducia: the real property is transferred as security to the patrimonio autónomo; the creditor may request its realization if the debtor defaults.
• Encargo fiduciario (a fiduciary mandate): a simpler administration arrangement, with no transfer of ownership to the patrimonio autónomo; therefore, without the same protection against the creditors of the party that constitutes it.

Before entering any project with a fiducia, you must review: what type of fiduciary transaction it is, what the conditions for reaching the punto de equilibrio are, what happens to your funds if that point is not reached, when and against which milestones the disbursements to the developer are released, and what specific obligations the fiduciaria assumes toward you as buyer. The correct answer is never "the fiduciaria answers for everything".

Two mandatory steps, not one

Transfer of title to the property: escritura pública plus registration with the SNR, Colombia's notarial and land registry authority (CC arts. 1857 and 756): why both steps are mandatory

In Colombia, the sale of real estate is not perfected by the meeting of the minds, nor by payment of the price. Article 1857 of the Código Civil is precise: the sale of real property is not deemed perfected before the law until an escritura pública has been granted. Without a deed there is no perfected sale from a legal standpoint, even if the parties have paid and agreed on everything.

But the deed alone is not sufficient either. Article 756 of the same code provides that the transfer of ownership of real property is effected by the entry of the title in the oficina de registro de instrumentos públicos. Tradición is the act by which ownership actually passes; without registration the buyer is not the owner in legal terms, even with the deed in hand.

The full route therefore has two steps that cannot be skipped or reversed:

In high-value transactions this process has moments of risk that are worth anticipating. Between the signing of the promesa and the execution of the deed, new registry entries may appear, attachments ordered at the request of other creditors of the seller, or changes in the seller's succession or marital situation. For that reason it is advisable to request an up-to-date certificado de tradición y libertad no more than ten days before the deed is executed, and to verify that there are no entries still pending cancellation.

It also matters to distinguish between the moment the deed is signed and the moment it is registered. If several days pass between the two, the buyer has signed but is technically not yet the owner. Any event affecting the seller in that interval may complicate registration. In large transactions, coordinating the signing and the filing of the title with the registry on the same day is good practice.

The most frequent conflicts

Frequent disputes in high-value promesas: causes, rights and routes

Disputes over promesas de compraventa (binding pre-sale agreements) for high-value real estate follow recognizable patterns. Understanding the cause of the conflict makes it possible to choose the correct action from the outset.

A. The developer fails to deliver on time. Delay in the physical delivery of the property is the most frequent conflict in new projects. A buyer who has paid installments for months or years and does not receive the property on the promised date is entitled, under article 1546 of the Código Civil, to seek performance of the contract or its termination, in both cases with compensation for damages. Compensation may include daño emergente, the actual loss suffered (the rent payments incurred because the promised property could not be occupied, for example), and lucro cesante, the profit foregone (the income not received if the property was intended to be leased). The key evidence is the contract with the delivery date, the proof of payment and the formal notice of breach.

B. The property does not match what was promised. Floor area, finishes, co-ownership coefficient, parking spaces, storage units or technical specifications different from those offered in the advertising and the contractual annexes. In these cases the buyer may argue partial breach and seek compensation or termination with damages, depending on how serious the discrepancy is. The advertising and the technical plans that form part of the promesa, or that were decisive for consent, carry evidentiary weight.

C. The seller turns out to carry undisclosed charges or mortgages. If, at the time of executing the deed, the certificado de tradición y libertad shows mortgages, attachments, civil claims, afectaciones de vivienda familiar or patrimonios de familia (Colombian family-home protections, not a homestead exemption) not mentioned in the promesa, the seller has the obligation to clear them before the deed is executed. If the seller cannot or will not, the buyer may demand performance with prior clearing of title, or terminate the contract with damages.

D. The buyer cannot pay the balance. If the buyer does not obtain the mortgage loan or the leasing habitacional (residential lease-purchase) to pay the balance of the price, the consequence depends on how the promesa was drafted. If obtaining the loan was not set as a condition precedent to the contract, the buyer's breach entitles the seller to demand performance or termination with damages. If it was set as a condition and the buyer acted diligently but did not obtain the loan for reasons beyond their control, the situation is different and must be analyzed case by case.

When to demand performance and when to terminate

CC art. 1546: when to seek specific performance versus termination of the contract with damages

Article 1546 of the Código Civil enshrines the condición resolutoria tácita (the implied resolutory condition): in bilateral contracts a resolutory condition is implied should one of the contracting parties fail to perform what was agreed. Faced with the breach, the party who has performed may seek, at their election, either termination or performance of the contract, in both cases with compensation for damages.

This choice is not trivial. It has important practical consequences that are worth weighing before the decision is made:

• Seeking specific performance means requiring in court that the other party perform what was agreed: that they execute the deed, deliver the property, lift the charges, pay (in Colombia specific performance is a right of the party who performed, not a discretionary equitable remedy). It is the right option when the transaction is still valuable to you and the breach can be overcome. The proceeding can be brought as an enforcement action if the promesa is directly enforceable under article 422 of the CGP.
• Seeking termination means undoing the contract and returning to the previous state, with compensation for the damages caused. It is the option when the breach makes the transaction impossible or pointless, when the property has lost value, when the waiting time generates additional damage that cannot be borne, or when the other party no longer has the capacity to perform.
• Compensation for damages may be sought in both cases. It comprises daño emergente and lucro cesante under articles 1613 and 1614 of the Código Civil: the harm or loss resulting from the breach, and the gain that was not received as a consequence of it.

Before choosing, it is advisable to verify that you yourself are in a position of performance, or ready and willing to perform. A contracting party who has also breached, or who is in default, has limited ability to demand. Preparing the lawsuit must include proof of your own performance, or at least of your willingness and capacity to perform at the proper time.

Map of disputes

Table: type of dispute, right of the injured party, applicable proceeding, estimated time and key evidence

The times are indicative estimates based on procedural practice. They vary significantly according to the court, the caseload, the evidentiary complexity and the prospects of conciliation. This table does not replace the analysis of the specific documents of the case.

Collecting without waiting for an ordinary trial

When the promesa can be collected through enforcement (CGP art. 422): which clauses turn the promesa into an enforceable instrument

The promesa de compraventa can become an enforceable instrument when it contains express, clear and enforceable obligations. Article 422 of the Código General del Proceso (Colombia's general code of civil procedure) provides that obligations with those characteristics may be sued upon through enforcement where they appear in documents originating from the debtor or from the debtor's predecessor and constituting full proof against them.

This matters because the enforcement proceeding is faster than the ordinary oral proceeding: instead of first proving the right and then collecting, collection starts directly and the defendant must disprove the obligation. In high-value real estate, access to the enforcement proceeding can make the difference between recovering the investment in months or in years.

For a promesa de compraventa to work as an enforceable instrument, it must contain clauses that make it possible to determine with clarity:

• An obligation to execute the deed with a determinable date or condition: if the promesa states that the deed will be executed before March 30, 2027 at the notaría chosen by the parties, and the seller does not appear on that date, there is a breached obligation to do something, and it can be enforced.
• Sums of money that are liquid or capable of being liquidated: if the promesa includes a cláusula penal (an agreed penalty clause, enforceable in Colombia as an advance estimate of the damages) for a set amount in the event of breach, or if it provides that the party who fails to perform must return the arras at double their value, those sums can be collected through enforcement.
• Obligations to give, identified with precision: the property must be identified in such a way that there is no doubt about what the object of the contract is.

A clause that says only "the seller must execute the deed within the agreed period", without setting a specific date, may not be sufficiently enforceable. By contrast, a clause that says "the seller undertakes to grant the escritura pública of sale on February 15, 2027 at the Notaría Segunda de Bogotá; failing that, the seller will pay the buyer the sum of forty million pesos as a penalty" contains obligations that are perfectly enforceable through the enforcement proceeding of article 422 of the CGP.

It is worth taking advice before signing, in order to include these clauses in the promesa, rather than after the conflict. The difference between a promesa that is directly enforceable and one that is not can amount to months of litigation and millions in costs.

What nobody warns you about before signing

Ten warning signs before signing a promesa de compraventa

These signs do not necessarily mean that the transaction is fraudulent, but they do mean that it should be paused, that more information should be requested and that a lawyer should be consulted before handing over any sum or signing the document:

• The property has no individual matrícula inmobiliaria (land registry folio number) assigned to it. In pre-sale projects the matrícula may not exist yet. Check whether there is a matrícula for the parent lot and whether the project documents are in order.
• The execution of the deed has a date that is "to be defined" or "subject to a pending permit". A wholly uncertain time limit may fail the third requirement of article 1611 of the Código Civil and may leave the promesa unenforceable.
• Payments go to a personal account of the seller or of the representative, and not to the account of the construction company or to the trust estate. This is one of the most serious indicators of risk.
• The certificado de tradición y libertad was issued more than 30 days ago. In high-value real estate, an old certificate can conceal recent entries for attachments, mortgages or restrictions.
• The seller or the seller's representative cannot evidence the authority to sell. In companies, the power to commit real property must be set out in the bylaws or in an express authorization from the competent corporate body.
• The promesa includes "unilateral modification" clauses in favor of the seller. A seller who can change the assigned unit, the finishes or the price without your consent holds a contractual advantage that can be used to your detriment.
• There is no trust agreement available for review, even though a fiducia is mentioned. The fiducia is not an advertising line; it is a contract you have the right to read before entering it.
• The project has no valid construction permit. A promesa over a project without a permit can be lawful, but the risk of delays, or of the permit not being granted, is high.
• The promesa does not distinguish between arras de retractación and a payment on account of the price. If the contract does not specify the nature of the initial payment, the argument about what happens if the transaction does not close can be long and costly.
• You are pressured to sign without time to review. A legitimate seller with a serious product does not need you to sign today. Artificial urgency is a classic warning sign in real estate transactions.

What you should review before sitting down at the notaría

Checklist of documents to review before signing the promesa

This list covers the minimum documents that are worth reviewing or requesting before signing the promesa de compraventa for a high-value property. Not all of them apply in every case, but each one that is missing is a point of risk that may materialize later:

To verify it yourself

Laws and case law cited

• CC art. 1611 — Promesa de celebrar contrato: four cumulative requirements for validity. Source: leyes.co/codigo_civil/1611.htm (verified 2026-06-23).
• CC art. 1602 — Binding force of the contract: every contract lawfully entered into is law for the contracting parties. Source: leyes.co/codigo_civil/1602.htm (verified 2026-06-23).
• CC art. 1546 — Condición resolutoria tácita: breach gives the right to seek termination or performance with compensation for damages. Source: leyes.co/codigo_civil/1546.htm (verified 2026-06-23).
• CC arts. 1613 and 1614 — Daño emergente and lucro cesante: components of compensation for damages. Source: leyes.co/codigo_civil/1613.htm and /1614.htm (verified 2026-06-23).
• CC arts. 1859 and 1860 — Arras in a sale: the party who gave them may withdraw by forfeiting them; the party who received them, on withdrawing, returns double. Maximum period of two months where no period was set. Source: leyes.co/codigo_civil/1859.htm and /1860.htm (verified 2026-06-23).
• CC art. 1857 — Sale of real property: it is not deemed perfected until an escritura pública is granted. Source: leyes.co/codigo_civil/1857.htm (verified 2026-06-23).
• CC art. 756 — Tradición of real property: it is effected by the entry of the title in the oficina de registro de instrumentos públicos. Source: leyes.co/codigo_civil/756.htm (verified 2026-06-23).
• Cco art. 1226 — Fiducia mercantil: definition and parties. Only credit institutions and authorized trust companies may act as fiduciarios. Source: leyes.co/codigo_de_comercio/1226.htm (verified 2026-06-23).
• Cco art. 1233 — Patrimonio autónomo: the assets transferred in trust are kept separate from the fiduciario's own assets and form a separate trust estate devoted to the purpose of the instrument that created it. Source: leyes.co/codigo_de_comercio/1233.htm (verified 2026-06-23).
• Cco art. 1238 — Protection against the creditors of the fiduciante: the assets held in trust cannot be pursued by the creditors of the fiduciante, except for claims that predate the constitution of the transaction. Source: leyes.co/codigo_de_comercio/1238.htm (verified 2026-06-23).
• CGP art. 422 — Títulos ejecutivos: express, clear and enforceable obligations recorded in documents originating from the debtor may be sued upon through enforcement. Source: leyes.co/codigo_general_del_proceso/422.htm (verified 2026-06-23).
• CGP arts. 368-373 — Proceso verbal: the ordinary oral proceeding applicable to disputes over sales and breach of contract. Source: leyes.co/codigo_general_del_proceso/ (verified 2026-06-23).
• CGP art. 468 — Mortgage and pledge enforcement proceeding: where the creditor seeks payment of an obligation exclusively out of the proceeds of assets encumbered with a mortgage. Source: leyes.co/codigo_general_del_proceso/468.htm (verified 2026-06-23).

Content prepared by Cafore Abogados as general guidance for Colombia. The specific strategy depends on the particular documents of the transaction, the registry certificates, the trust agreement, the communications between the parties and the circumstances of each operation. Before signing a high-value promesa, consult a lawyer specialized in civil and real estate law. Last editorial review: June 2026.