Contracts and Agreements

Real Estate Purchase Promise Contracts: Structure and Risks

March 15, 2026 — Enrique Benet-Gregg

Legal Structure and Risks of the Real Estate Sales Promise Contract

The real estate sales promise contract is, frequently, the instrument that determines the success or failure of an operation before the notary intervenes. Its apparent simplicity conceals a technical complexity that, if mismanaged, generates protracted litigation, loss of deposits, and registry blockages. Understanding its legal architecture and its risk zones is not an advantage: it is an operational necessity for any participant in the real estate market of the Riviera Maya and the Mexican Caribbean.

Applicable Legal Regime

In Quintana Roo, the sales promise is governed primarily by the Civil Code of the State of Quintana Roo (decree adopting it with its own reforms, last reform published in the State Official Gazette in 2024), specifically in its articles 1,830 to 1,835, which regulate the promise contract in general, and by the provisions relating to the sales contract contained in articles 2,248 and following of the same ordinance.

At the federal level, when the operation involves real property located in a restricted zone and the acquirer is a foreigner, the Foreign Investment Law (articles 10, 10-A and 11) and its regulations come into play, as well as article 27 of the Constitution, first paragraph and section I, which establishes the restriction on direct acquisition by foreigners in the strip of 100 kilometers along the borders and 50 kilometers on the coasts. This constitutional restriction takes on full operational relevance in the Riviera Maya, where the entire coastal territory is encompassed within the restricted zone.

The structural mechanism that Mexican legislation enables for foreign natural persons to acquire rights over real property in the restricted zone is the banking trust authorized by the Secretariat of Foreign Affairs, in accordance with article 10 of the Foreign Investment Law. Under this arrangement, a Mexican credit institution acts as trustee and registered owner of the real property, while the foreigner holds the status of beneficiary with all rights of use, enjoyment, and disposition. Foreign legal entities, for their part, may obtain direct title through the permission of the Secretariat of Foreign Affairs provided for in article 10-A of the same law. When a sales promise contract involves a foreign acquirer, the structure of the trust or the permission of a legal entity must be provided for in the text of the preliminary contract, either as a suspensive condition or as an obligation of means, in order to prevent the subsequent impossibility of executing the final contract from frustrating the entire operation.

For the promise to produce binding effects, article 1,831 of the Civil Code of Quintana Roo requires: (i) that the final contract not be one of those declared null by law in its nature; (ii) that the promise contain the characteristic elements of the final contract; and (iii) that the term or condition that shall determine its enforceability be fixed. The absence of any of these three requirements converts the promise into a preliminary contract without executive force.

Suspensive Conditions: Function and Drafting

The suspensive condition, regulated in article 1,938 of the Civil Code of Quintana Roo, postpones the birth of the obligation to execute the deed until a future and uncertain event occurs. In real estate operations typical of the Riviera Maya, the most common suspensive conditions are: the obtaining of construction licenses or land use permits; the regularization of the condominium property regime; the obtaining of the permission of the Secretariat of Foreign Affairs in accordance with article 10-A of the Foreign Investment Law when the acquirer is a foreign legal entity; and the lifting of mortgage liens registered in the Public Property Registry.

Deficient drafting of the condition produces devastating effects. If the condition is impossible from its origin, article 1,944 of the same code declares it null, and that nullity may contaminate the entirety of the contract. If the condition is merely discretionary for the debtor, article 1,943 invalidates it. Consistent with the interpretative criterion sustained by the Collegiate Courts of Circuit of the XXVII Circuit (Quintana Roo), the legal characterization of a condition as suspensive or resolutory does not depend on the denomination that the parties assign to it, but on the effects that it produces on the existence of the obligation; this criterion, consistent with the interpretative line established by the collegiate bodies of that circuit in matters of preparatory contracts (criterion.

Pre-Sale Operations and Non-Constituted Condominium Regime

A specific structural risk of pre-sale operations (off-plan) in the Riviera Maya deserves independent analysis: the promise of sale is frequently executed before the condominium ownership regime has been constituted and registered in the Public Property Registry. In this situation, the unit subject of the promise does not yet exist as a legally individualized asset nor as an autonomous registrable object, which generates specific problems of identification, enforceability and opposability against third parties.

The Condominium Law of the State of Quintana Roo regulates the constitution of the condominium regime in its articles concerning the requirements for execution and registration of the regime, establishing that the legal individualization of each private unit only operates from the registration of the regime in the Public Registry. Before that moment, the promised private unit has no independent registration existence.

To mitigate this risk, the promise executed on a unit in project must: (i) describe the asset with sufficient particularity by reference to the architectural plan of the development, unit number, approximate surface area, level or floor, boundaries and projected undivided interest percentage; (ii) incorporate an express suspensive condition linked to the constitution and registration of the condominium ownership regime before the Public Registry of Property and Commerce of Quintana Roo; and (iii) establish with precision the maximum period within which said condition must be verified, as well as the contractual consequences in the event that the promising seller fails to constitute the regime in time. The absence of these elements may determine that, in the event of non-performance, the judge finds specific performance impossible due to lack of a sufficiently determined object, reducing the promising buyer to a merely compensatory action.

Consequences of Non-Performance

Non-performance of the promise opens three courses of action that the creditor may exercise alternatively in accordance with article 1,834 of the Civil Code of Quintana Roo: (i) demand the forced execution of the final deed through an action for specific performance; (ii) sue for rescission of the contract with restitution of performances; or (iii) claim damages. In line with the reiterated criterion of the First Chamber of the Supreme Court of Justice of the Nation, consistent with the jurisprudential thesis accessible through Digital Registration 2025430 in the Judicial Weekly of the Federation (Eleventh Epoch), the action for execution of deed is admissible when the asset subject of the contract remains in the patrimony of the promisor and the final contract is legally possible, without the judge being able to substitute the sentence by the monetary equivalent in a discretionary manner. This position reinforces the strategic value of preventively registering the promise contract in the Public Property Registry.

For operations in Quintana Roo, the regulatory basis authorizing preventive registration of the promise of sale is the Registration Law of the State of Quintana Roo and, subsidiarily, the provisions of the state Civil Code itself regarding registrable acts. Article 3,043 of the Federal Civil Code is cited in national literature as a comparative reference of the preventive registration mechanism, but its direct application is limited to the federal sphere and the former Federal District; consequently, the operative basis for registration in the Public Registry of Quintana Roo must be sought in the applicable state registration statute, whose updated consultation is recommended before the Directorate of the Public Registry of Property and Commerce of the State. Preventive registration, once practiced under the state regime, grants opposability against subsequent third-party acquirers and registrally blocks dispositive acts of the promising seller during the term of the agreed period, which is especially relevant in developments with multiple promising buyers where the risk of double sale, penalized by article 386 of the Federal Criminal Code as generic fraud, is not merely theoretical.

Guarantee Mechanisms: Earnest Money and Conventional Penalty

The determination and drafting of guarantee mechanisms is a preventive structuring decision, not a resource exclusively for litigation. Article 1,840 of the Civil Code of Quintana Roo distinguishes between conventional penalty and earnest money, figures that are frequently confused in documentary practice with significant procedural consequences.

Confirming earnest money deposits constitute an advance payment on account of the price and their delivery reinforces the seriousness of the promise without limiting contractual liability; in case of breach, the creditor retains the earnest money but may additionally claim damages and losses exceeding that amount. Penal earnest money deposits, by contrast, operate as a unilateral withdrawal clause: the promising buyer forfeits the earnest money delivered if they withdraw, and the promising seller returns it doubled if they are the one in breach, with both parties released from any additional obligation. The limiting conventional penalty fixes in advance the maximum amount of liability, with the effect that the creditor cannot claim damages exceeding the agreed amount.

Confusion among these figures generates recurring litigation. Article 1,843 of the Civil Code of Quintana Roo establishes that the judge cannot moderate the conventional penalty agreed upon except in cases of partial performance; this rigidity makes the correct classification of the clause from the contract drafting stage determinant for the outcome of the proceeding. The practical recommendation is to expressly designate in the contract the legal nature of the clause, the amount of earnest money, the tax treatment of the advance and the procedure for its return or retention, thereby eliminating the ambiguity that fuels litigation.

Practical Implications for Structuring the Transaction

Before executing a purchase promise, the due diligence analysis must verify: the chain of title in the Public Registry of Property and Commerce of Quintana Roo; the existence of liens, preventive annotations or pending litigation; the tax status of the property before the Tax Administration Service and the Municipal Treasury; and the regularity of the condominium ownership regime in accordance with the Condominium Law of the State of Quintana Roo. None of these elements can be effectively corrected after the promise is signed without substantially modifying the risk to the acquiring party.

Tax Considerations and Anti-Money Laundering Compliance

The purchase promise fixes the price of the transaction and anticipates the economic moment of closing, which activates tax and regulatory compliance obligations that must be integrated into the structure from the precontract negotiation stage.

With respect to Income Tax, Article 126 of the Income Tax Law establishes the obligation to withhold on the gain of the disposing natural person. When the promise fixes a price that the acquirer or the notary instrumenting the deed considers lower than market value, the SAT may question the valuation and determine tax differences chargeable to the disposing party, with consequent joint and several liabilities for whoever acquires. Tax due diligence must include the obtaining of a current appraisal that supports the agreed price.

As to Value Added Tax, the disposition of real property intended for residential use is generally exempt in accordance with the VAT Law, while the disposition of commercial or mixed-use real property may be subject to the general rate. This distinction directly affects the financial structure of the transaction and must be resolved before the promise is signed.

The Federal Law for the Prevention and Identification of Operations with Proceeds from Illicit Sources (LFPIORPI) classifies real property purchase and sale transactions as vulnerable activities subject to client identification obligations, file integration and, when the value of the transaction exceeds the thresholds established in Article 17, section XIV of said law, reporting to the Financial Intelligence Unit. This obligation rests with the public notaries who formalize the transaction and with real estate agents who participate in the intermediation. In the Riviera Maya market, where a significant proportion of transactions involve international buyers and prices above reporting thresholds, non-compliance with LFPIORPI obligations exposes all participants to severe administrative sanctions and may compromise the registral validity of the transaction. The identification of the origin of the funds must be documented from the promise stage, not deferred to the moment of execution.

Operative Conclusion

A well-structured purchase promise is not a form: it is the instrument that distributes the legal risk of the transaction among the parties before the final contract is possible. Its drafting requires precision in determining conditions, time periods, consequences of breach and guarantee mechanisms. A deficient promise compromises not only the advance paid, but the viability of the entire transaction.

IBG Legal is a boutique law firm specializing in litigation and structuring of real estate and corporate contracts, headquartered in Cancún with offices in Mexico City and Querétaro. Our practice combines complex litigation before the courts of Quintana Roo with transactional advisory services to domestic and international investors operating in the Riviera Maya and the Mexican Caribbean. IBG Legal offers structured review of promise-to-purchase contracts with written opinion on registration, tax, and enforcement risks, tailored to the specific nature of the transaction, including condominium pre-sale operations, acquisitions by foreign nationals through bank trust arrangements, and transactions subject to the LFPIORPI threshold.

Sources and References

Legislation

Constitución Política de los Estados Unidos Mexicanos, article 27, first paragraph and section I (restricted zone and restrictions on acquisition by foreign nationals). Last amended: DOF, November 18, 2022.
Código Civil del Estado de Quintana Roo, articles 1,830 to 1,835 (promise of contract); 1,938 to 1,944 (contract modalities: condition); 1,840 and 1,843 (contractual penalties and earnest money); 2,248 and following (sale). Last amended: Official Gazette of the State of Quintana Roo, 2024.
Ley Registral del Estado de Quintana Roo: provisions relating to registrable acts and preventive registration of promise-to-purchase contracts. Official Gazette of the State of Quintana Roo, with current reforms. Note: this is the operative normative basis for preventive registration in Quintana Roo; article 3,043 of the Federal Civil Code is cited solely as a comparative federal-level reference of the mechanism.
Código Civil Federal, article 3,043 (preventive registration of promise contracts, comparative reference). Last amended: DOF, January 11, 2021.
Ley de Inversión Extranjera, articles 10 (bank trust authorized by the SRE for foreign natural persons in restricted zone); 10-A (SRE permit for foreign legal entities); 11 (supplementary provisions). Last amended: DOF, June 15, 2023.
Reglamento de la Ley de Inversión Extranjera y del Registro Nacional de Inversiones Extranjeras. Last amended: DOF, November 30, 2018.
Ley de Condominios del Estado de Quintana Roo: articles relating to the establishment of the condominium regime, execution and registration requirements, and individualization of private units. Official Gazette of the State of Quintana Roo, with reforms applicable to the regime of rights transmission in condominium units.
Código Penal Federal, article 386 (generic fraud, applicable to double sale). Last amended: DOF, May 8, 2024.
Ley del Impuesto Sobre la Renta, article 126 (withholding on sale of real property by natural persons). Last amended: current DOF.
Ley del Impuesto al Valor Agregado: provisions on exemption applicable to residential real property and taxation on commercial real property. Last amended: current DOF.
Ley Federal para la Prevención e Identificación de Operaciones con Recursos de Procedencia Ilícita (LFPIORPI), article 17, section XIV (purchase and sale of real property as a vulnerable activity); provisions on client identification, file integration, and reporting to the Financial Intelligence Unit. Last amended: current DOF.

Judicial Criteria

First Chamber of the Supreme Court of Justice of the Nation: Reiterated criterion regarding specific performance of preparatory contracts, consistent with the jurisprudential line accessible through Digital Registry 2025430 in the Federal Judicial Gazette (Eleventh Epoch). The Chamber has held that the action for execution of deed is appropriate when the property subject to the contract remains in the patrimony of the promisor and the definitive contract is legally possible, without the judge being able to substitute the condemnation with its pecuniary equivalent in a discretionary manner. To locate additional binding theses on in natura performance in preparatory contracts, it is recommended to consult the Federal Judicial Gazette through the terms «promise of sale» and «execution of deed» filtering by binding jurisprudence of the Eleventh Epoch.
Collegiate Courts of Circuit of the XXVII Circuit (Quintana Roo): Criterion regarding legal qualification of contractual conditions, consistent with the interpretative line established by the collegiate bodies of that circuit in matters of preparatory contracts. The courts have determined that the suspensive or resolutory nature of a condition is determined by its effects on the existence of the obligation and not by the designation that the parties attribute to it in the contract text. Criterion. Note: as it was not possible to confirm the thesis number or specific IUS registry at the time of this publication, the citation is formulated in accordance with the verifiable interpretative line; it is recommended to update the reference through direct consultation with the System for Consultation of National Jurisprudence (SCJN) before invoking the criterion in court proceedings.

Doctrine

Bejarano Sánchez, Manuel. Civil Obligations. 6th ed. Oxford University Press, México, 2010. Chapters on modalities of obligations and preparatory contracts.
Rojina Villegas, Rafael. Mexican Civil Law, Volume V: Contracts. Porrúa, México. Sections relating to the promise contract and conditions.
Gutiérrez y González, Ernesto. Law of Obligations. 19th ed. Porrúa, México. Analysis of conventional penalties and earnest money in Mexican civil law.
Supreme Court of Justice of the Nation. Binding Jurisprudence on Preparatory Contracts and Specific Performance. Federal Judicial Gazette, Eleventh Epoch. Recommended consultation through the legal search engine of the Federal Judicial Branch: sjf2.scjn.gob.mx, filtering by «jurisprudence» and terms «promise of sale», «preparatory contract» and «in natura performance».
Institute for the Technical Development of Public Finance (INDETEC). Publications on real estate taxation in México, including the treatment of income tax in transfers of real property and the application of the LFPIORPI in real estate transactions. Available at: www.indetec.gob.mx.

Official Sources

Official Gazette of the Federation (DOF): www.dof.gob.mx
Official Gazette of the State of Quintana Roo: periodicooficial.qroo.gob.mx
Public Registry of Property and Commerce of the State of Quintana Roo: consultation of real folios and preventive registrations.
Ministry of Foreign Affairs: procedure for obtaining permit for acquisition of real property by foreign legal entities in accordance with Article 10-A of the Foreign Investment Law; procedure for authorization of banking trusts in restricted zone in accordance with Article 10 of the same law.
Financial Intelligence Unit (UIF), Ministry of Finance and Public Credit: reporting criteria under the LFPIORPI for vulnerable activities in the real estate sector. Available at: www.uif.gob.mx
System for Consultation of National Jurisprudence, Federal Judicial Branch: sjf2.scjn.gob.mx