Sale agreement or promise to sell in Marrakech: deposit, conditions precedent and pitfalls in 2026

The first document a buyer signs in Marrakech is neither the final deed nor the loan: it is a sale agreement (compromis) or a promise to sell, usually with a deposit. It is also where most money is lost through plain bad drafting. This guide compares the two instruments, sets out what 2026 guides recommend on deposits and conditions precedent, and flags where they contradict each other.

Sale agreement or promise: two different commitments

The four sources agree on definitions. The compromis is a reciprocal (“synallagmatic”) commitment: seller and buyer are both bound to complete the sale. The unilateral promise binds only the seller, who undertakes to sell at a set price within a period; the buyer holds an option to exercise or not.

The difference has a price. According to Wafir, the buyer under a promise pays an immobilisation fee of 10 to 15% of the price, which the seller keeps if the buyer walks away. The site does not source this rate, and neither Captain.Legal nor ReaConsult gives any amount: treat it as a market order of magnitude, not a rule. Another point to keep: ReaConsult notes that many deeds titled “promise” in fact contain reciprocal commitments. The title of the document does not decide its nature; its clauses do.

Form: where the guides diverge

This is the real risk zone. Captain.Legal (3 June 2026) states that a promise under private signature is void and requires an authentic deed (notary or adoul) or a dated deed drafted by a lawyer admitted before the Court of Cassation. Wafir (16 May 2026) does not discuss form at all and describes a quick compromis drafted in one to three days.

Our analysis of law 41.25 on the authentic deed is stricter: the authentic form is required for the promise to sell, and the lawyer route was closed in July 2026. The sources therefore disagree, and a guide predating that reform may be out of date. The practical rule does not change: pay nothing before a notary or adoul has received the deed, and ask them to confirm the form required for your property.

A deposit paid against a simple agency receipt is the hardest situation to recover from. Wafir mentions 6 to 24 months of proceedings if the seller cashed it directly.

The deposit: usual amounts, no legal rate

According to LesMRE, the standard deposit is 10% of the price (120,000 DH on 1.2 million), but its FAQ says 10 to 30% and states that no amount is set by law. Wafir gives 5 to 10%. All three recommend escrow with the notary rather than paying the seller or agent.

• The sale completes: the deposit is credited against the price.
• The buyer withdraws without valid reason: the deposit is lost (LesMRE, Wafir).
• The seller withdraws: they return double, if the penalty clause expressly says so (LesMRE, Wafir). LesMRE ties these clauses to articles 263 to 270 of the Code of Obligations and Contracts.
• A condition precedent fails: the deposit is refunded in full, without penalty.

On payments, stay within cash limits: see the cash payment ceiling and payment traceability. Wafir cites 30,000 MAD and ties this ceiling to law 43-05.

The conditions precedent that really protect you

A condition precedent suspends the commitment until a specific event occurs. The sources list several:

• Obtaining the loan, with a minimum amount, maximum rate and deadline (30 to 90 days depending on the page). See mortgages for foreigners and MRE.
• Release of a mortgage or absence of seizure: an encumbered property blocks the sale.
• Clearing of any pre-emption right, where relevant.
• Habitation permit in order, or permit obtained within the deadline for a property under construction.
• For MRE buyers: a clause covering international transfer delays (LesMRE).

Each condition needs its own deadline, notes Captain.Legal, which also says an option period that is too short can wreck an otherwise sound sale. For a new-build programme, a standard compromis is considered unsuitable: see the legal VEFA payment schedule.

Timelines, costs and seller default

Timelines vary: 60 to 90 days between compromis and deed, extendable by 30 (Wafir), versus 1 to 3 months (LesMRE, whose FAQ says 2 to 4). Captain.Legal mentions a practice of 45 to 90 days for the option, with no legal basis cited. For drafting, Wafir quotes 800 to 2,500 MAD at a notary and LesMRE 500 to 2,000 DH; at a lawyer, Wafir indicates 1,500 to 5,000 MAD excluding tax. These ranges are indicative: ask for a quote.

If the seller never signs, ReaConsult cites ruling no. 4428 of the Casablanca Commercial Court of Appeal (11 July 2023): promise signed in 2012, formal notice in 2022, judicial termination and full refund of 2.61 million MAD with damages. The reasoning rests on articles 255 and 259 of the DOC. The practical lesson: set a precise deadline and a “within X days” refund clause, because without a deadline you need a formal notice and then proceedings. To protect the waiting period, see the priority notice on the land title.

Checklist before signing

• Have the deed received by a notary or adoul and confirm the form required for this property.
• Check the deed is correctly classified: compromis (reciprocal) or promise (option), deposit or immobilisation fee.
• Pay the deposit into an escrow account, never in cash to the seller or agent.
• Write in the conditions precedent: loan, mortgage release, permit, pre-emption, each with a deadline.
• Draft the penalty clause and the refund on seller default, with a deadline.
• Set the deadline for the final deed and a termination clause if it is missed.
• Have the land title and mortgage status checked before any payment.
• Keep the transfer proof if you are an MRE or foreign buyer, for any later repatriation.

This article is informational and does not replace the advice of a notary or lawyer. The four sources are professional or commercial guides, sometimes contradicting each other; only the statutes and the notary receiving your deed are authoritative.