A listing agreement (nota de encargo) is the contract in which an owner instructs an estate agency to find a buyer or tenant. It sets out the property, the asking price, the fees, the duration and whether it is exclusive. Legally it is a brokerage contract (mediación or corretaje), and it gives the agency the right to its commission.
In practice
The commission is earned when the deal the instruction aimed at is closed. Spain's Supreme Court grants the full commission when the broker's work was "decisiva o determinante" (decisive or determining), even if the owner sells without the agency knowing and at a different price (judgment 228/2014). If the instruction was not exclusive and the buyer closed through another agency, the first one has to prove its work was decisive (judgment 448/2014). The viewing form helps prove it, along with the rest of the file.
What the agreement says matters too. In an exclusive instruction, the Madrid Provincial Court in 2026 applied a clause with different fees for a sale to an agency client and for a direct sale by the owner, and ordered payment of the amount agreed for the latter (judgment 118/2026).
If you sign at the owner's home. When the owner is a consumer and the agreement is signed away from the agency's office, it is an off-premises contract, with a right to withdraw within fourteen calendar days without giving reasons. In judgment 167/2021, the agency signed at the clients' home and did not tell them about that right. It found buyers, the clients withdrew, and the Supreme Court held the withdrawal valid and the fees not owed. Without that information, the withdrawal period is extended by twelve months.
In residential lettings, agency and contract-drafting costs have been for the landlord since Law 12/2023 (art. 20 of the Urban Leases Act).
What the law says
- Brokerage. The Supreme Court calls it an atypical contract (judgment 228/2014): the rules on commission come from its case law.
- Articles 92 and 102 of the General Law for the Protection of Consumers. Off-premises contracts and withdrawal within fourteen calendar days.
- Articles 71.3 and 103.a. Without the information, the period ends twelve months after the initial one; a service already performed only removes the right if the consumer agreed to it starting, knowing they would lose it.
- Article 80. Clarity and legibility of non-negotiated clauses.
- Comunitat Valenciana. Article 3 of Decree 98/2022 requires the listing agreement to state the agent's professional details, guarantee and registration number in the register of agents.
Common mistakes
- Not explaining the withdrawal right when signing away from the office. It can cost you the whole commission.
- Confusing it with the viewing form. The agreement is signed with whoever hires you; the form only records a viewing. We explain it in the property viewing form.
- Agreeing exclusivity without saying what happens if the owner sells. Write down which fee is owed in that case, as in the Madrid case.
Sources
- Supreme Court, judgment 228/2014 of 21 May and judgment 448/2014 of 30 July.
- Supreme Court, judgment 167/2021 of 24 March (ECLI:ES:TS:2021:1082).
- Provincial Court of Madrid, Section 9, judgment 118/2026.
- Royal Legislative Decree 1/2007, General Law for the Protection of Consumers and Users, arts. 71, 80, 92, 102 and 103.
- Law 29/1994, Urban Leases Act, art. 20.
- Decree 98/2022 of 29 July of the Consell, art. 3.