Property Sale Disputes in Morocco: Failed Agreements, Deposits and Remedies

A valid preliminary agreement to sell property in Morocco is binding. Contractual obligations validly formed have the force of law between the parties and can be revoked only by mutual consent or where the law allows (DOC Article 230). But the agreement does not make the buyer the owner: it obliges the parties to conclude the sale; it does not transfer the property.

If one party refuses to complete, the other may, depending on the facts, ask the court to order performance where it is still possible, or to terminate the contract, with damages in either case (DOC Article 259). None of these outcomes is automatic; the court decides on the file.

What happens to money already paid depends on what that money legally is. Arrhes are governed by DOC Articles 288 to 290; an advance or part-payment of the price follows a different logic; and money paid under a void agreement must in principle be returned. There is no general rule that the buyer always loses the deposit, and no rule requiring the seller to repay double.

The precise answer turns on eight points: whether there is a legally valid agreement; when it was signed (before or after 22 August 2024); whether the statutory form was respected; whether the property and price were agreed; whether the payment is arrhes or an advance; which party failed to perform; whether the property is registered; and whether a third party has acquired or registered rights over it.

In Moroccan practice, the preliminary document is usually called a promesse de vente (promise to sell), a compromis de vente or simply a preliminary agreement; you may also see a reservation form or a payment receipt. Moroccan law does not attach separate regimes to these labels in the way French law distinguishes unilateral and bilateral promises, and those French categories should not be imported. What matters is the substance of the document and whether it meets the legal form, not its title.

A contract is complete only when the parties agree on its essential elements (DOC Article 19), and a sale is complete once the parties agree on the property, the price and the other terms (Article 488). The price must be determined (Article 487). A document that does not identify the property precisely or fix the price is a weak basis for asking a court to order completion.

A receipt that only records a payment does not, on its own, establish a promise to sell that a court can enforce. A 2013 Court of Cassation decision (no. 92/7, file 833/1/7/2012), known from secondary publications rather than an official report consulted for this guide, is reported to that effect: a receipt for arrhes is not a preliminary sale contract where the parties have not agreed on the price, the property and the other terms. That is consistent with DOC Articles 19 and 488, but it remains tied to its facts.

DOC Article 14, which states that a mere promise creates no obligation, sits among the rules on unilateral declarations of will. It does not mean that a promise to sell accepted by both parties has no effect.

Law 41.24, promulgated by dahir no. 1.24.39 of 7 August 2024 and published in the Official Bulletin no. 7328 of 22 August 2024, rewrote Article 4 of the Real Rights Code (Law 39-08). It entered into force on publication.

The provision now names the promise to sell real property expressly. All acts transferring ownership or creating, transferring, modifying or extinguishing other real rights — including the promise to sell real property — together with the special powers of attorney relating to them, must be drawn up, on pain of nullity, either as an official (authentic) instrument or as a date-certain instrument drafted by a lawyer admitted to practise before the Court of Cassation, unless a special law provides otherwise.

In practice, an official instrument is received by an authorised public officer, notably a notary or adouls; the alternative is a date-certain instrument drafted by a lawyer admitted before the Court of Cassation, subject to the signing and certification formalities that Article 4 sets.

The consequence is serious. A promise to sell real property made under the new text without this form is exposed to nullity. An obligation that is void by operation of law produces no effect, except that what was paid under it can be recovered (DOC Article 306). A defective document therefore cannot be used to force completion of the sale — but nor does it entitle the seller to keep the buyer's money.

A WhatsApp exchange, a handwritten receipt or an informal reservation note does not become a valid promise to sell property simply because it mentions the property and a price.

Before Law 41.24, Article 4 did not mention promises to sell. Some courts held that a promise was not subject to the Article 4 form; a Court of Cassation decision (civil file no. 653/1/7/2022), reported in the press in February 2023, was presented in that sense. That decision has not been verified in an official publication for this guide, and it concerns the former wording of the text.

A promise signed before 22 August 2024 must therefore be assessed under the law in force when it was concluded and on its own facts. The published text of Law 41.24 contains no specific transitional provision on this point. The earlier decisions cannot be relied on for a promise concluded under the new text.

A promise creates obligations between the parties; it does not make the buyer the owner. For registered property, the dahir of 12 August 1913 on land registration is explicit: voluntary acts and contracts that create, transfer or modify a real right take effect, even between the parties, only from their entry on the land title, without prejudice to the parties' claims against each other for non-performance (Article 67). And a real right in registered property exists against third parties only from the day it is entered on the title (Article 66).

A sale of immovable property must also be made in writing with a certain date, and it has effect against third parties only once registered in the form required by law (DOC Article 489).

For unregistered property, ownership is proved under Article 3 of the Real Rights Code, which combines deeds, origin of title and possession, and Article 4 applies as well. Where the property is the subject of a pending registration application, some questions fall under opposition to land registration, which is a separate procedure.

English speakers tend to call any money paid before completion a deposit. Moroccan law does not. "Arrhes" (العربون in Arabic) is a statutory concept: under DOC Article 288, arrhes are what one contracting party gives the other to secure performance of its undertaking. They have their own rules in Articles 289 and 290.

An acompte, an advance or a payment "on account of the price" (التسبيق in Arabic) does not have an equivalent general regime in the DOC: it is a part-payment of the price. If the sale does not go ahead, the question becomes one of returning what was paid, subject to any damages that may be owed.

Not every deposit, reservation payment or part-payment is arrhes. The classification depends on the wording of the agreement and on what the parties intended; no statute creates a presumption either way. The word "arrhes" written on a receipt is a pointer, not a conclusion. This is often the first point to settle, because everything else about the money follows from it.

No — not under any general rule of Moroccan law. DOC Articles 288 to 290 contain no rule requiring a seller who backs out to repay double the arrhes. The widespread online claim to the contrary does not match the official text.

If the seller is responsible for the failure, the buyer may claim the return of the arrhes and, depending on the facts, forced performance or termination with damages (Article 259). Those damages are not fixed at double the deposit: they correspond to the loss actually proved and assessed by the court (Article 264).

A contract may, however, include a clause setting an agreed financial consequence — for example a sum equal to twice the arrhes payable by the defaulting party. Such a clause is then an agreed-damages clause under Article 264, which the court can reduce if excessive or increase if derisory.

This is the most common scenario. Before anything else, check that the promise is valid — in particular that it meets Article 4 if it was signed after 22 August 2024 — and that it covers an identified property at a determined price.

If it does, the buyer may, depending on the circumstances: ask the court to order performance of the promise where that is still possible; alternatively, ask for the contract to be terminated; claim back the sums paid; and claim damages for proven loss (Article 259). For registered property, the buyer may also seek to preserve the claimed right by a prénotation.

A formal refusal by the seller removes the need for a formal notice (Article 256), but it is still worth recording the refusal in writing. And if the promise is void for want of form, forced completion is not available; the buyer nonetheless keeps the right to recover what was paid (Article 306).

The seller has the same basic options: ask for performance — payment of the price against signature of the deed — or for termination of the contract, with damages in either case (Article 259).

The position is not symmetrical, however, because the seller usually holds the money. If the payment is genuine arrhes and the failure is the buyer's fault, Article 290 allows the seller to retain them until the court fixes the damages. If it is an advance, the seller cannot simply keep it: on termination, sums paid are in principle returnable, subject to set-off against any damages awarded to the seller.

A seller who turned away other buyers or incurred costs must prove it: damages are not presumed. There is no rule that the seller always keeps the deposit.

DOC Article 259 gives the creditor the right to compel a debtor in default to perform the obligation, where performance is possible. Applied to a promise to sell, this allows a party to ask the court to order the sale to be completed. A final judgment that creates or transfers a real right must then be entered on the land title (Article 65 of the 1913 dahir).

The outcome is not guaranteed. Not every promise can be enforced, and the court will examine a series of substantive and formal conditions before granting such an order.

Damages cover the actual loss suffered and the gain the creditor was deprived of, where both are the direct consequence of non-performance; the court assesses the circumstances of each case and must evaluate damages differently depending on whether the debtor was at fault or acted fraudulently (DOC Article 264). Costs incurred, bank penalties, a proven lost opportunity: each item must be proved.

The parties may agree in advance on the damages due for total or partial non-performance or for delay. That figure is not untouchable: the court may reduce it if excessive, increase it if derisory, or reduce it in proportion to partial performance, and any clause to the contrary is void (Article 264, as amended by Law 27-95).

An arrhes clause is not necessarily a penalty clause; it depends on what the parties actually agreed. A rise in market value between the promise and the refusal to sell may be argued as lost gain, but whether it is compensated depends on proof and on the court's assessment; it is not a given.

If the agreement fixes a date for signing, the debtor is in default simply by the arrival of that date (DOC Article 255).

If no date was fixed, the debtor is in default only after a formal notice — a mise en demeure — asking for performance within a reasonable time and stating that, once that time has passed, the creditor will consider itself free to act. The notice must be in writing; it may be given by telegram, registered letter or even by bringing a court claim, including before a court without jurisdiction (Article 255).

No formal notice is needed where the debtor has expressly refused to perform, or where performance has become impossible (Article 256).

A missed deadline does not end the promise by itself. Termination is not automatic and must be pronounced by the court (Article 259), unless the parties agreed that the contract would be terminated automatically on non-performance (Article 260). A formal notice is a step, not an automatic right to forced completion.

A promise may be made subject to a condition — an uncertain future event on which the obligation depends (DOC Article 107): obtaining a mortgage, an authorisation, regularisation of the title or release of an existing mortgage. If the condition is not met, the consequences depend on what the agreement says.

Bank financing is a condition only if the agreement makes it one. A buyer who fails to obtain a loan, without a clause to that effect, is not released for that reason alone. An obligation whose very existence depends solely on the will of the person bound is void (Article 112).

A sale of someone else's property is valid if the owner ratifies it or the seller later acquires ownership. If the owner refuses to ratify, the buyer may seek termination; the seller also owes damages where the buyer did not know at the time that the property belonged to someone else, and the seller can never rely on that fact itself (DOC Article 485). This framework, written for sales, is the reference point for assessing a promise given by someone who was not the owner.

An heir or co-owner cannot, alone, promise the whole of a property in which they hold only a share, and that promise does not bind the other co-owners who did not consent. A transfer of an undivided share also raises the other co-owners' pre-emption right (shufaa), and ending co-ownership is a matter for judicial partition.

The buyer then has to weigh what can realistically be obtained: refund and damages against the promisor, rather than a sale the court could not impose on the other owners.

This is the scenario buyers fear most. For registered property, a real right exists against third parties only from the day it is entered on the land title (Article 66 of the 1913 dahir). If a second buyer registers a deed before the first buyer has protected the claimed right, the second buyer is in principle in a strong position.

The Real Rights Code protects third parties registered in good faith: later cancellations, amendments or removals of entries cannot be asserted against them, unless the right-holder suffered loss through fraud or forgery and brings a claim within four years of the entry in question (Article 2 of Law 39-08).

This is where a prénotation matters: its date fixes the rank of the later registration of the right it preserves (Article 85 of the 1913 dahir). A buyer who obtained a prénotation before the second buyer registered is in a better position.

Without a prénotation, and against a third party registered in good faith, the first buyer may no longer be able to obtain the sale itself; a claim for refund and damages against the seller in principle remains. The exact outcome depends on the facts — in particular the second buyer's good or bad faith — and no absolute rule can be stated here.

Prénotation (التقييد الاحتياطي) is the Moroccan statutory mechanism — sometimes described in English as a provisional or protective land-register entry — that allows anyone claiming a right over registered property to have that right provisionally preserved on the land title (Article 85 of the dahir of 12 August 1913, as amended by Law 14-07). It is available only for registered property.

It does two things: it warns third parties who consult the title that the right is claimed, and its date fixes the rank of the final registration of the right if the claim later succeeds. It does not transfer ownership and does not decide the case.

It carries risks. The president of the first-instance court orders a prénotation only if satisfied that the request is well founded; a new request on the same grounds is not allowed; and the entry can be removed by the urgent-matters judge where the grounds prove unfounded or irregular (Article 86). Where the court finds that a request was made abusively, vexatiously or in bad faith, it imposes of its own motion a civil fine of at least 10% of the value of the property or right claimed, without prejudice to damages (Article 86 bis).

This ordinary prénotation should not be confused with the specific prénotation available to off-plan buyers under DOC Article 618-10, which follows its own text.

A prénotation protects a right over the property itself. Where what is at stake is money — return of arrhes or an advance, or damages — a conservatory attachment of the debtor's assets may be considered under the conditions of Law 58.25.

In urgent situations, the urgent-matters judge may be approached within the limits of that jurisdiction; urgent interim relief does not decide the merits. For unregistered property, the Article 85 prénotation is not available, which makes the other measures all the more important to assess.

The applicable rules are those of Law 58.25 on civil procedure, in force since the end of August 2026, which repealed the former 1974 Code of Civil Procedure.

As a general rule, territorial jurisdiction lies with the court of the defendant's actual or elected domicile (Article 66). By way of exception, real actions concerning immovable property go to the court where the property is located, and mixed actions — involving both a personal and a real right — may be brought before the court where the property is located or the court of the defendant's domicile (Article 67). How a claim is framed — refund only, completion of the sale, or both — therefore affects which court to approach, and it should be settled before filing.

A property-sale dispute between private individuals is in principle a matter for the first-instance court. The commercial courts have jurisdiction only in the cases set out in Article 35 of Law 58.25, notably disputes over commercial contracts and disputes between traders relating to their commercial activities; not every property sale falls there. A prénotation order is requested from the president of the first-instance court where the property is located (Article 85 of the 1913 dahir).

Two separate questions arise. The first is validity: for a promise subject to Article 4, the legal form is a condition of validity, on pain of nullity. The second is proof of the facts: payments, exchanges, refusal, loss.

Documentary evidence may come from an authentic or private instrument, but also from correspondence or any other intelligible signs, whatever the medium (DOC Article 417). Electronic writing has the same evidential value as paper, provided its author can be identified and its integrity preserved (Article 417-1). Above ten thousand dirhams, proof by witnesses is not admitted (Article 443).

A WhatsApp message or an email can therefore prove a payment, an agreement in principle or a refusal. It cannot, however, make up for the form Article 4 requires for the promise to be valid.

The rules in this guide apply whatever the nationality or residence of the parties: the Article 4 form, arrhes, forced performance, termination, prénotation and court jurisdiction.

One point matters directly to buyers acting at a distance: special powers of attorney relating to these acts are themselves covered by Article 4 as amended by Law 41.24, and must meet the form it requires.

Foreign-exchange rules, repatriation of funds, the legal nature of the land and formalities for documents issued abroad are governed by separate rules not covered here and should be checked for each transaction. For the checks to run before signing, see the guide to buying property in Morocco as a foreigner.

Where the seller undertakes to build the property within a set period and transfer it against a price paid as the works progress, the special off-plan regime — vente en l'état futur d'achèvement, or VEFA — applies (DOC Articles 618-1 and following). It has its own rules: a reservation contract with a one-month withdrawal right, a preliminary contract subject to a statutory form on pain of nullity, specific guarantees and a specific prénotation.

This guide does not cover those transactions. For developer delays, stalled projects or other disputes with a developer, see the guide to off-plan property disputes in Morocco.

In these disputes the most expensive mistakes are made early: a promise wrongly classified, a payment treated as arrhes when it was an advance, a claim filed before the wrong court, or a prénotation sought too late, after another buyer has registered. A property lawyer in Morocco starts by avoiding those pitfalls, then builds a coherent strategy linking protection of the property, the main claim and the procedural timetable.

It is important to be clear about limits. Counsel does not decide the case and cannot guarantee that the sale will be completed or that money will be recovered; not every failed sale can be forced to completion. The role is to establish what the file actually supports, gather the evidence that matters, secure the client's position on the land title where that is possible, and see the proceedings through to registration or enforcement of the judgment.

The same approach applies for a seller: checking whether the buyer is genuinely in default, classifying the money received before deciding to retain it, assessing the risk of a claim for completion or of a prénotation by the buyer, and choosing between performance and termination.

Where the buyer or seller lives abroad, or a foreign company is party to the deal, the dispute often has several strands. A foreign law firm or international counsel may deal with foreign-law issues, corporate structuring, international financing, tax questions outside the Moroccan dispute, and coordination with the client's home jurisdiction.

Local counsel in Morocco handles what happens on the ground: analysing the agreement under Moroccan law, protecting the land title, the prénotation, the proceedings before the Moroccan courts, local deadlines, and coordination with Moroccan transaction professionals. That division should be agreed from the start, including who holds the original documents and who signs powers of attorney, and in what form.