Handing over the keys before the notary deed can seem like a practical solution. The buyer might need to move house, start on minor renovations, or vacate another property. The seller, in turn, might feel the deal is sufficiently secured as the preliminary contract has been signed and a deposit has been paid.

However, receiving the keys does not mean becoming the owner of the property. Until the signing of the deed or the notarised private document, ownership, as a general rule, remains with the seller. Early handover creates an intermediate situation in which the buyer is already using the house, although the purchase may not yet have been finalised.

For this reason, the handover of keys before the deed must be expressly regulated in the contract of promise to buy and sell or in a written addendum. It is necessary to define who can occupy the property, what are the assumed charges, what works are permitted and what happens if the deed is not executed.

Receiving the keys before the deed is signed means you get possession of the property before the legal transfer of ownership is complete.

The early handover of keys allows the prospective buyer to enter the property and start using it before the conclusion of the sale and purchase. In legal terms, this situation is often associated with the tradition of the property.

Tradition alone does not transfer ownership. The CPCV obliges the buyer and seller to enter into the definitive contract in the future, while the deed or the notarised private document formalises the transfer of the property.

Therefore, even if the buyer already has the keys, has moved into their new home, or is paying household expenses, the property remains registered in the seller's name until the transaction is completed.

This difference is essential. If financing is refused, a documentary problem arises, or one of the parties does not appear at the signing of the deed, it will be necessary to resolve not only the fate of the deposit, but also the occupation of the property, expenses paid, works carried out, and the return of the keys.

When can it make sense to hand over the keys early?

The handover of keys before the deed can be considered when there is a concrete reason and when risks are properly controlled.

This can happen, for example, when the deed of sale experiences a slight administrative delay, despite all the documentation being in order. It can also be considered when the buyer needs to arrange their move, take measurements, or start urgent work.

However, practical convenience should not replace legal analysis. Early handover is especially risky when a residential mortgage has not yet been approved, there are mortgages or charges to be cancelled, licences are missing, probate proceedings are underway, or there is no defined date for the deed.

The greater the uncertainty surrounding the completion of the purchase, the less advisable it will be to permit early occupation of the property.

What does Portuguese law say?

The preliminary contract is regulated, among other things, by Article 410 of the Civil Code. Through the Preliminary Purchase and Sale Agreement (CPCV), the parties undertake to subsequently enter into the definitive purchase and sale contract.

The handover of keys is not an automatic effect of the CPCV. As a rule, the keys are handed over when the transfer of ownership is formalised and the seller receives the outstanding price. If the parties decide to bring this moment forward, they must set down the respective conditions in writing.

Article 442 of the Civil Code governs the deposit and various consequences of breach of contract. Where the property has already been transferred, specific effects may arise in the event of a breach attributable to the seller, including compensatory mechanisms associated with the value of the property, provided that the legal requirements are met.

In certain circumstances, the promisee-purchaser who has received the property may still invoke a right of retention to secure debts arising from the breach of contract by the other party. This possibility depends on the specific factual matrix and should not be presumed solely because the keys have been handed over.

It could also be considered the specific execution provided for in Article 830 of the Civil Code, through which a party seeks to judicially obtain the execution of the promised contract. Its application depends on the content of the CPCV, the circumstances of the breach, and the legal possibility of completing the sale.

Main risks for the buyer

For the buyer, early entry into the house can create a false sense of security. Having the keys does not eliminate the risks related to financing, property documentation, or the seller's default.

A mortgage may not be approved

A bank's pre-approval is not necessarily final approval. The bank may change its decision after assessing the property, documentation, debt-to-income ratio or the buyer's financial conditions.

If the preliminary sales agreement does not include a suitable financing clause, the refusal of credit may leave the buyer without the means to complete the sale and exposed to the loss of the deposit. If they are already occupying the house, they will also have to arrange their departure and deal with any expenses or repairs.

The seller may not be able to complete the deed.

Mortgages may arise that are not cancelled in time, foreclosures, area discrepancies, lack of a use license, disputes between heirs, or difficulties in obtaining documents.

Entry to the property does not solve any of these problems. On the contrary, it may make it more difficult to undo the situation if the sale cannot be completed.

Works carried out before acquiring the property

The buyer may invest in paintings, equipment, repairs, or renovations and subsequently discover that the deed will not be finalised/completed.

Without a clear clause, disputes may arise regarding the authorisation of the works, their cost, the right to compensation, the restoration of the property and the fate of improvements. Structural works or those requiring a licence present an even greater risk.

Expenses without a defined criterion

After the handover of the keys, it is common for questions to arise regarding water, electricity, gas, condominium fees, insurance, IMI (Imposto Municipal sobre Imóveis - Municipal Property Tax), repairs, and maintenance.

If the contract does not indicate from when each charge is to be borne by the buyer, both parties may consider the responsibility to lie with the other.

Main risks for the seller

The seller also assumes relevant risks when they hand over the property before receiving the full price and before formally transferring ownership.

Difficulty in recovering the property

If completion does not take place and the buyer refuses to vacate, the seller must not resort to force, arbitrarily change locks, or remove the occupier's belongings.

It may be necessary to formally request the return of the property and, in case of resistance, resort to the appropriate legal means. During this period, the owner may be prevented from using, renting, or selling the property to another person.

Damage caused during the occupation

Leaks, fires, equipment damage, or unauthorised alterations can occur. Without a handover certificate and photographs, it will be more difficult to prove the condition the property was in.

Doubts may also arise about who is accountable to the condominium, neighbours, insurers or service providers.

Unauthorised works

The buyer may assume that, by agreeing to purchase the house, they have the freedom to demolish walls, replace equipment, or alter installations.

If the purchase fails, the seller may receive a property different from the one they delivered, potentially with incomplete works or without the necessary permits.

Responsibility associated with ownership

Until the final deed is signed, the seller remains the registered owner. Some responsibilities towards public entities, the condominium, or third parties may continue to be directed to them, even though the preliminary purchase and sale agreement establishes an internal distribution of charges.

Essential clauses for regulating early delivery

A generic clause stating only that the keys are handed over on a certain date is insufficient. The CPCV must regulate the situation in detail or be accompanied by a specific addendum.

As clauses of the CPCV relating to early delivery shall address, at least, the following aspects.

Date and purpose of delivery

The exact date on which the keys are handed over and the permitted purpose must be indicated. The authorisation may be solely for carrying out measurements, minor works or residential occupation.

It is important to clarify that delivery does not represent the transfer of ownership, nor does it alter the price or the remaining conditions of the purchase.

Temporary nature of occupation

The contract must explain that the use of the property is temporary and conditional upon the completion of the deed. It must also preclude interpretations inconsistent with the parties' intentions, notably the existence of a lease agreement, when that is not the intention.

Legal qualification does not depend solely on the name given to the clause. The actual content of the agreement, the payments made, and the way the property is used can also be relevant.

Deadline for the deed

The handover of keys should not take place without an objective date or deadline for the signing of the final contract.

The CPCV must identify who draws up the deed, how much notice must be given for the meeting, what documents are needed, and what happens if the deadline is not met. You can also consult the article on Non-compliance with the deadline for the deed in the promissory sale and purchase agreement.

Prohibition or limitation of works

It must be established whether the buyer can carry out works and which ones. A prudent solution consists of requiring written authorisation from the seller for any intervention that goes beyond simple and reversible works.

The clause must regulate the destination of the works if the purchase does not materialise, including the possible restoration of the property, removal of materials, and the existence or absence of compensation for improvements.

Current expenses

It is necessary to establish who pays for water, electricity, gas, telecommunications, condominium fees, insurance, and minor repairs during the period of occupation.

The property transfer tax and extraordinary condominium expenses should also be expressly regulated. The agreed division between buyer and seller does not prevent certain entities from demanding payment from the person legally registered as responsible.

Security and liability for damages

The seller must confirm if existing insurance covers early occupation by a third party. The buyer may need to arrange adequate cover for their goods, liability, or works.

The contract must indicate who is liable for damage to the property, common areas of the building, neighbouring units, or third-party property.

Prohibition of transfer to third parties

The buyer shall not be able to hand over the keys, lend, lease or assign the use of the property to third parties without the express authorisation of the seller.

This rule is particularly important when the buyer intends to house family members, workers, tenants, or start a business.

Consequences if the writing does not happen

This is one of the most important clauses. The contract must define the deadline for vacating and handing over the keys, the condition in which the property must be returned, and the fate of expenses and works carried out.

An amount can still be foreseen for each day of delay in reimbursement, provided that it is proportionate and legally appropriate. This clause does not eliminate the need to analyse who caused the breach and what rights arise from the deposit regime.

The importance of the key handover document

The delivery must be accompanied by a document signed by both parties. This deed can be attached to the CPCV or to the respective addendum.

The document must indicate the number of keys handed over, the meter readings, the condition, the existing equipment, and any defects already identified.

It is advisable to include dated photographs of each room, the included appliances, meters, and any pre-existing damage. This proof can be decisive if a dispute arises regarding deterioration or missing items.

Is it safe to carry out renovations before the deed is signed?

Carrying out works before the deed of sale significantly increases the buyer's risk. Even when there is trust between the parties, unexpected obstacles to the completion of the deal can arise.

Before commencing any works, it must be confirmed whether the CPCV authorises the works, if any necessary licences are in place, if the condominium must be informed, and if the insurance covers potential damages.

The buyer should not assume they will automatically recover the money invested if the purchase fails. The possibility of claiming compensation depends on the cause of the breach, the authorisation granted, the nature of the works, and the clauses agreed upon.

When intervention is indispensable, it may be prudent to limit works to reversible, low-value actions until the property is transferred.

Should the financing be approved before handing over the keys?

The safest solution is to await final approval of the funding and confirmation that the bank is prepared to proceed with the deed.

A simulation, a favourable assessment or a pre-approval do not guarantee that the loan will be made available. There may still be outstanding conditions, such as the taking out of insurance, the submission of documents, the cancellation of burden or an update on the buyer's professional situation.

If early possession occurs before the final decision, the CPCV must include a rigorous financing clause. It should state the minimum amount required, the deadline for obtaining approval, the method of proving any refusal, and the consequences for the deposit and occupation of the property.

What to do if you've already received the keys and the deed is delayed?

A delay does not automatically constitute a definitive breach. It is necessary to check the contractual deadline, the reason for the delay, the responsibility of each party, and the communications already made.

The first step should be to gather the CPCV, addendums, proof of payment, messages, summons for the deed, and financing documentation.

Quando as partes pretendem manter o negócio, pode ser celebrado um aditamento para prorrogar o prazo e atualizar as condições de ocupação. O documento deve indicar uma nova data, distribuir as despesas durante o prolongamento e confirmar que as restantes cláusulas se mantêm.

Se uma das partes deixar de colaborar, pode ser necessário enviar uma comunicação formal para exigir o cumprimento dentro de um prazo adequado. A resolução do contrato e as consequências sobre o sinal não devem ser declaradas de forma precipitada, porque dependem da existência de mora ou incumprimento definitivo.

É possível resolver o problema sem ir a tribunal?

Muitas situações podem ser resolvidas através de negociação. As partes podem acordar uma nova data para a escritura, corrigir documentos, alterar a repartição de despesas ou definir uma saída organizada do comprador.

Também pode ser possível celebrar um acordo de resolução consensual do CPCV, regulando a devolução do sinal, a restituição do imóvel, as obras efetuadas e os pagamentos pendentes.

Qualquer solução deve ser reduzida a escrito e assinada por todos os intervenientes. Um acordo verbal pode deixar sem resposta precisamente os pontos que deram origem ao conflito.

Riscos de usar uma minuta genérica

Uma minuta comum de CPCV raramente regula de forma adequada a entrega antecipada das chaves. Pode não indicar quem suporta danos, o que acontece às obras ou como recuperar o imóvel se a escritura não for celebrada.

Também pode misturar conceitos diferentes, criar contradições com o regime do sinal ou estabelecer penalizações difíceis de aplicar.

Antes de assinar, é importante verificar a legal validity of the CPCV, a documentação do imóvel, os poderes das partes e a coerência entre o prazo da escritura, o financiamento e a ocupação antecipada.

Quando consultar um advogado?

Deve procurar apoio jurídico antes da entrega das chaves quando o crédito ainda não está aprovado, existem obras previstas, o imóvel tem encargos, a escritura não tem data definida ou o sinal representa uma parte relevante das poupanças do comprador.

Também é aconselhável consultar um advogado quando a ocupação já começou e surgiram atrasos, pedidos de saída, danos, despesas inesperadas ou divergências sobre o incumprimento.

Uma análise individual permite perceber se é preferível adiar a entrega, alterar o CPCV, celebrar um acordo autónomo ou estabelecer garantias adicionais.

Como um advogado pode proteger comprador e vendedor?

O apoio jurídico pode ajudar a confirmar a situação registral e documental do imóvel, rever o prazo da escritura e adaptar as cláusulas às necessidades concretas das partes.

Um advogado pode ainda preparar o auto de entrega, delimitar as obras permitidas, regular seguros e encargos, prever a restituição do imóvel e esclarecer as consequências de uma eventual recusa de financiamento.

Quando já existe conflito, pode avaliar se há simples atraso ou incumprimento definitivo, preparar comunicações formais, negociar um acordo ou analisar a possibilidade de execução específica, indemnização ou restituição do imóvel.

Conclusão

A entrega de chaves antes da escritura não é uma simples antecipação da mudança. Cria uma relação jurídica e prática complexa entre um vendedor que continua a ser proprietário e um comprador que já utiliza o imóvel.

Para o comprador, os principais riscos são investir numa casa que ainda não lhe pertence, perder o sinal ou ter de sair se o financiamento ou a escritura falharem. Para o vendedor, existe o risco de danos, obras não autorizadas, despesas e dificuldades na recuperação do imóvel.

Quando a entrega antecipada for realmente necessária, deve existir uma cláusula detalhada, um prazo claro para a escritura e um auto que documente o estado da casa. O CPCV deve explicar quem paga os encargos, quais as obras permitidas, quem responde por danos e como serão devolvidas as chaves se o negócio não se concluir.

Antes de entregar ou receber as chaves, a revisão jurídica do contrato permite identificar riscos que uma minuta genérica não resolve. O CPCV não é uma mera formalidade e a ocupação antecipada torna ainda mais importante adaptar cada cláusula ao caso concreto.