The promise of sale: what a Malta buyer signs before the deed

Most people buying in Malta sign the real agreement months before they get the keys. That document is the konvenju — the promise of sale. If you are coming from the UK, your instinct is to map it onto exchange of contracts, with completion to follow. The mapping is imperfect in ways that cost money, and the differences are written into the Civil Code rather than negotiated by your agent.

This is a reference article, not legal advice. The notary who publishes your deed is the person who should read your konvenju to you line by line.

A promise of sale is not a sale

Article 1357 of the Civil Code is explicit: a promise of sale or transfer of a thing is not equivalent to a sale or transfer. Nothing moves on the day you sign. You do not own the property, and you cannot start works in it as though you did.

What the article does say is that a promise to sell, if accepted, obliges the promisor either to carry out the sale or to make good any damages. Article 1360 applies the same rules to a promise to buy. So the obligation is real and it runs both ways — but it is an obligation to perform or to compensate, not a transfer of title.

That distinction matters most to shell-form buyers, because it answers the question everyone asks: can I send a measuring team in next week? Not as of right. Access before the deed is something the konvenju has to grant you, in writing, or it does not exist.

The konvenju has an expiry date, and the law supplies one if you don't

The parties fix the period. Failing agreement, article 1357 gives three months from the day on which the sale could have been carried out. When that period runs out, the promise lapses.

There is one way to keep it alive. Before the period expires, the promisee must call on the promisor by judicial intimation to perform the obligation. If the promisor still fails to do so, the demand must be followed by a sworn application filed within thirty days. Miss the window and the remedy goes with it.

Two practical consequences:

• The date in your konvenju is not a target. It is a deadline with a statutory consequence.
• If anything in your chain is slow — a bank, a permit, a search — the extension has to be agreed and documented before the clock runs out, not after.

The deposit: read the words, not the custom

Article 1359 of the Civil Code deals with earnest (caparra). Where earnest is given, either party may withdraw from the contract: the party who gave the earnest forfeits it, and the party who received it returns double. The article adds the qualification "saving any other usage".

What this does not tell you is whether the money you are handing over is earnest at all. A payment under a konvenju can be characterised in different ways, and the characterisation is a matter of what the particular document says. Do not assume your deposit is earnest. Do not assume the sum is a fixed percentage — nothing in these sources sets one. Ask your notary, before signing, which article your money sits under and what each party can do with it if the deal collapses.

The konvenju must be notified, with 20% of the duty paid up front

Article 3(6) of the Duty on Documents and Transfers Act is a validity rule, not an administrative formality: a promise of sale is not valid unless it is notified to the Commissioner within the prescribed time, together with a provisional payment of 20% of the duty chargeable on the eventual transfer.

So the konvenju is not only a commitment to buy. It is the point at which the first slice of duty leaves your account. Budget for it at signature, not at the deed.

The energy certificate has to exist before you sign, not after

This one surprises buyers routinely, because in practice the EPC is often treated as a last-minute item.

Regulation 13(3) of S.L. 623.01 requires the energy performance certificate to be shown to the prospective buyer and handed over to them before the promise of sale. Regulation 13(4) covers the case that applies to a great many Maltese purchases: where a building is sold before construction, a design rating EPC is attached to the promise of sale or the deed. The same regulation requires a new EPC where energy-relevant alterations are made, by notarial deed.

If the seller does not provide one, you are not stuck. Regulations 14(4) and 14(5) allow the buyer to commission an EPC and deduct the cost of it from the price.

For a shell-form buyer there is a second reason to care. A design rating describes an intended building. What you actually build — glazing, insulation, services — is what the finished rating will reflect. Keep the design rating with your file; it is a statement of what the property was sold as.

Non-residents: the permit carries a six-month clock

Where a buyer requires a permit under the Immovable Property (Acquisition by Non-Residents) Act, the Second Schedule to Cap. 246 imposes a condition on the permit holder: the acquisition must be effected within six months of the issue of the permit, saving any extension.

Read that against the konvenju timetable. The six months run from the permit, not from your signature, and not from the deed date you have pencilled in. If the permit is issued early and the deed is late, you can find the two periods out of step. Sequencing the permit application against the promise of sale period is a question for your notary at the time of signing, not afterwards.

Shell form: the konvenju is the document that defines what you are getting

Malta sells property in shell form as a matter of course, and buyers arriving from markets where "unfinished" means "needs a kitchen" tend to underestimate the gap.

The sources used here do not define shell form. There is no statutory list of what a shell-form handover includes or excludes, which means there is no default to fall back on if the contract is silent. The konvenju is the document that has to state it — what is in place at handover, what is not, and to what standard — and anything left to a verbal understanding with a developer is, in practice, unenforceable detail.

Before signing, it is worth having written answers to the simple questions: what exactly is delivered, in what condition, and when access for your own works begins. Everything downstream — your finishing budget, your programme, whether a Gozo site means ferry crossings for every delivery, whether a condominium's rules constrain the works you intend — is priced off that description.

What to have in hand at signature

1. The EPC, shown and handed over before the promise of sale (or the design rating, for a property sold before construction).
2. Confirmation of how the konvenju will be notified to the Commissioner and the provisional 20% duty paid.
3. Your notary's explanation of how the deposit is characterised in your specific wording, and what article 1359 does or does not mean for it.
4. A permit timetable, if Cap. 246 applies to you, aligned with the deed date so the six months do not expire first.
5. A written description of the state in which the property is handed over.