The agency won't return my earnest money — what do I do?

You found an apartment in Lima, put down S/10,000 to reserve it and, for whatever reason, the deal stalls. You ask the agency to return the earnest money and they refuse. What you signed — was it a simple reservation, arras de retractación or arras confirmatorias? The difference decides whether you get your money back, lose it, or are even entitled to double.

The three figures that exist in Peru

The Peruvian Civil Code distinguishes two kinds of earnest money, plus the plain commercial "reservation" that many agencies use:

• Reservation (commercial use): a payment to take the property off the market for a short period. It's not a sale contract.
• Arras de retractación (article 1480 of the Civil Code): they let either party back out. If the party that gave them backs out, they lose them; if the party that received them backs out, they must return them doubled.
• Arras confirmatorias (articles 1477–1479 of the Civil Code): they are part of the final contract and are credited against the price. If one party breaches, the other can demand performance or termination plus damages.

When the agency can legitimately keep your money

If you signed arras de retractación and you're the one deciding not to move forward without contractual cause, you'll lose what you paid. They may also be legitimately retained when:

• You exceeded the deadline to sign the minuta or the public deed without justification.
• Your MiVivienda, Fondo MiVivienda or bank loan was denied due to inaccurate information you provided.
• The contract expressly stipulated forfeiture for specific breaches, and you fall within one of them.

When you can recover (or collect double)

You're on the strong side if:

• The agency or owner failed to deliver documentation: SUNARP partida registral, HR and PU of the autoavalúo, no-debt certificate for the Impuesto Predial.
• Undisclosed encumbrances or liens appear in the electronic record.
• You were promised square meters that don't match reality, or the property has no recorded declaratoria de fábrica.
• The contract provided for a refund if the loan was denied, and that's what happened.
• If you signed arras de retractación and the other party backs out, you're entitled to receive them doubled.

Steps to claim your money in Lima, Arequipa or Trujillo

1. Gather evidence

Signed contract, transfer voucher, emails, messages and the property's partida registral. Without documents, your position weakens.

2. Notarial demand letter

A notarial letter addressed to the agency and, in parallel, to the owner demands the refund and creates a record of the breach. It usually costs between S/40 and S/120 at a Lima notary.

3. Complaint before Indecopi

If the agency acted as a provider of a real estate service, you can file a complaint with Indecopi for breach of the Consumer Protection Law. It's especially useful when there was misleading information about the property or about the refund conditions.

4. Court action

If nothing works, the civil route remains: a lawsuit to enforce a payment obligation — or, depending on the case, to terminate the contract — before the relevant civil court. Statutory interest and costs can be included.

Numerical example in soles

Apartment in Surco at an agreed price of S/450,000. You gave S/15,000 as arras de retractación. The seller decides to sell to another buyer who offered more:

• You're entitled to S/30,000 back (the doubled earnest money).
• If you signed arras confirmatorias, you can also demand performance of the contract or damages.

How to avoid losing both the deposit and the apartment

• Request an updated partida registral from SUNARP before signing.
• Verify recent HR and PU and that the Impuesto Predial is paid.
• Confirm the declaratoria de fábrica is recorded; if it isn't, that's a red flag.
• Put in writing what happens if the MiVivienda or bank loan is denied.
• Never pay into a personal account without a contract; demand an invoice or receipt and a document that clearly states the type of earnest money.

Key difference vs. the commercial "reservation"

Many agencies in Peru ask you to "reserve" with S/2,000 to S/5,000 for 7 to 15 days. If that document doesn't meet the Civil Code requirements, it isn't properly arras: it's a brokerage service. In that case, the refund is governed by the contract clause and the Consumer Protection Law, not by articles 1477 to 1483 of the Civil Code.

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