How to protect your deposit before signing the preliminary contract

• 75 lei/property - recording the promise in the land register, making it enforceable against third parties (375 lei for urgent processing) (ANCPI Order 16/2019)
• 6 months - the time limit for asking the court for a judgment replacing the contract, from the date it should have been signed (Article 1669 of the Civil Code)
• Statutory mortgage - the prospective buyer's security over the property for amounts paid towards the price (Article 2386 point 2 of the Civil Code)
• 20 lei online - the informational land register extract, which anyone can request for any property (ANCPI Order 16/2019)

1. Why the deposit is the most exposed money in the transaction

The preliminary contract (sale and purchase promise) does not transfer ownership. For immovable property, ownership transfers only through the sale contract executed in authentic form before a notary, and entry in the land register makes it enforceable against third parties. Until then, your payment is merely a claim: if a problem arises, you do not have the property, only the right to claim your money from the seller.

At the final contract, the notary checks the documents, authentication extract and parties' identity. At the preliminary contract, especially one signed privately, no one checks anything for you. Deposit protection therefore has two parts that cannot replace each other: what you write in the document and what you check before paying.

Official references: Civil Code, Article 1244 (authentic form for transferring rights in rem over immovable property), Articles 1279 and 1669 (promise to contract and sale promise).

2. Advance payment or earnest money: the name determines what you recover

An advance payment is part-payment of the price. If the preliminary contract is cancelled, it is generally returned as part of restoring the parties to their previous position. Courts, including Înalta Curte, have confirmed that without an express earnest-money clause, the payment is simply part of the price. An advance payment does not itself penalise anyone: sanctions for the party blocking the transaction must be written separately.

Earnest money is different. The Civil Code gives it its own regime, with two variants. Confirmatory earnest money (Article 1544): if you fail to perform without justification, the seller may declare termination and retain the money; if the seller fails to perform, you may declare termination and claim double the amount. Withdrawal earnest money (Article 1545): if the contract expressly grants one or both parties a right to withdraw, the withdrawing party loses the earnest money paid or, as applicable, returns double the amount received.

There is also a safeguard: earnest money is returned when the contract ends for reasons that do not give rise to either party's liability (Article 1546). The practical problem is that the parties argue over precisely who is at fault, so do not rely on the statutory provision: write the scenarios into the contract, as the next section shows.

Official references: Civil Code, Articles 1544-1546. Check the exact wording in your document with the notary or a lawyer before signing.

3. Clauses that protect you: written scenarios, not verbal promises

The simple rule: every scenario that could block the transaction must have a written answer in the preliminary contract to “what happens to my money?”. Conditions precedent are the main tool: the obligation to proceed depends on a clear event, with a deadline, supporting document and the treatment of the money written down for both outcomes.

• Loan: full repayment if the bank rejects financing or the valuation falls below the threshold, with evidence of refusal and a notification deadline.
• Clear land register: the right to refuse signing and recover the money if new or unaccepted encumbrances appear at authentication.
• Existing mortgage: a written payment and discharge mechanism (payment to the seller's bank, consent to discharge), not just a promise to sort it out.
• Documents and people: a deadline for the tax clearance certificate, cadastral documents and consent from co-owners or the spouse.
• Balanced deadlines: if you lose money for a delay, the seller should also face a written consequence when the delay is theirs.

For large sums, ask the notary about controlled payment: an escrow account or another mechanism preventing the funds from being released unconditionally to the seller before the documents are in order. The cost of such an arrangement is small compared with the risk of pursuing money through litigation.

4. Legal safeguards few buyers use

The first is recording the promise in the land register (Article 906 of the Civil Code). The sale promise can be recorded if the promising seller is registered as the rights holder and the preliminary contract states a deadline for concluding the final contract: without that deadline, OCPI rejects the recording request. Recording may be requested at any point within the period, but no later than 6 months after it expires. The effect: the promise becomes enforceable against third parties. Anyone requesting a land register extract sees it, and a second buyer can no longer claim ignorance.

The second is the prospective buyer's statutory mortgage (Article 2386 point 2 of the Civil Code): for amounts paid towards the price, the law grants you a mortgage over that property in case the promise is not performed. This is security over an asset, not just a claim: you rank ahead of the seller's unsecured creditors. It is not entered automatically: it must be requested at OCPI separately from recording the promise, and notarial practice requires the preliminary contract in authentic form for registration. It secures only amounts paid towards the price, not penalties or other damages.

The third is enforcement of the promise: if the seller unjustifiably refuses to conclude the final contract, the court may issue a judgment replacing it at the request of the party that has performed its own obligations, provided all other validity conditions are met. The right to bring this action expires 6 months after the date the contract should have been concluded (Article 1669 of the Civil Code).

Official references: Civil Code, Article 906, Article 2386 point 2 and Article 1669. Recording and registration of the statutory mortgage take place through the land register; the notary can help with both when the preliminary contract is executed in authentic form.

5. What to check about the seller before transferring funds

The deposit goes to a person or company, not to a property. If the seller has pending cases, enforcement proceedings or a company in insolvency, recovering the money becomes a marathon rather than a formality. Public sources show the main indicators before payment:

• Litigation: on portal.just.ro, search court cases free of charge by the person's or company's name. Look for defendant status, enforcement proceedings and litigation affecting property.
• Insolvency: for companies, Buletinul Procedurilor de Insolvență (BPI) and the ONRC register show insolvency or bankruptcy proceedings. An insolvent promising seller means your funds compete with other creditors' claims.
• Company seller: ONRC status (active, dissolution, struck off), directors with signing authority and tax debts publicly visible at ANAF.
• Individual: co-owners and spouse. For community property, selling without the other spouse's consent may be annulled (Articles 346-347 of the Civil Code), so both must sign the preliminary contract.

Name-based checks have a limitation worth being clear about: namesakes. Two people with the same name may appear on the same portal, so results must be read alongside the other documents, not in isolation. Full details in the guides to checking an individual seller and checking a company owner.

6. What to check about the property: land register encumbrances and risks

Anyone, not just the owner, can obtain a recent informational land register extract. The authentication extract used when signing the final deed is obtained only through the notary. The informational extract is a snapshot of the land register when issued and does not lock it, so the check must be repeated close to signing. Before the deposit, it is the minimum filter: Part III shows mortgages, prohibitions, attachments, recorded litigation and any promises recorded for other buyers.

• An existing mortgage does not automatically block a sale, but requires a written discharge mechanism before you accept any deadline.
• Prohibitions on disposal, attachments and enforcement proceedings are stop signals until fully clarified.
• Local tax debts block the deed: from 2026, both seller and buyer need a tax clearance certificate (OUG 7/2026), failing which the deed is void.
• The property's physical risks remain yours after buying: the seismic risk class and flood exposure are worth checking before committing funds, not afterwards.

7. Practical steps, in order, before signing

• Request a recent informational land register extract before discussing money.
• Check the seller: litigation on portal.just.ro, company insolvency in BPI, company status at ONRC.
• Set out the payment's legal treatment in writing: advance payment or earnest money, plus repayment scenarios.
• Add the conditions precedent you depend on: financing, mortgage discharge, complete documents.
• Bring all owners to signing; for community property, both spouses.
• Discuss recording the promise in the land register and the statutory mortgage for amounts paid with the notary.
• Pay by bank transfer with evidence, only after signing, never cash beforehand.

Put the budget in context before signing too: estimate the full purchase costs with the total cost calculator and authentication charges with the notarial costs calculator.

This guide is for information only and does not replace legal advice. For large sums or unusual situations, discuss the clauses with the notary and a lawyer before transferring money.

Frequently asked questions