Promise to sell an existing home: unilateral promise or compromise

Verified 02 August 2023 - Directorate for Legal and Administrative Information (Prime Minister)

Want to buy or sell real estate? Do you want to make your agreement on a purchase or sale a reality before the signature of the final act? You can sign a pre-contract called promise of sale. We're explaining the possibilities.

When you have reached an agreement on the purchase or sale of a property, you can sign a promise to sell before signing the final act. This pre-contract is not mandatory, but it is recommended to express your mutual agreement. It governs your relationships during the preparation of theauthentic instrument which cannot be signed immediately, taking into account the necessary documents, procedures and verifications.

A sales promise can take two forms:

  • One-sided promise of sale
  • Or sales compromise, also called promise synallagmatic sales
Sales Compromise

A sales compromise can be signed when you are sure you want to close the purchase or sale of the home. This act is definitively binding on you. This is not the case if it includes a clause providing, under certain conditions, for the withdrawal of one or both parties.

The compromise can be achieved under one of the following 2 forms:

  • Act under private signature carried out directly by you or with the support of a real estate agent for example
  • Authentic instrument established by a notary (mandatory when the seller is a natural person and the validity of the compromise exceeds 18 months)
One-sided promise of sale

A unilateral promise can be signed when you, the buyer, are not sure you want to close the sale. This act gives you the freedom to decide whether or not to opt out (i.e. whether or not to purchase the home). This way you book the accommodation for a clearly specified period. Seller, you agree not to sell the property to another buyer.

The unilateral promise of sale can be fulfilled under one of the following 2 forms :

  • Act under private signature carried out directly by you or with the support of a real estate agent for example
    From the date of signature, a unilateral promise under private signature must be registered within 10 days at the registration department of the seller or buyer. This record is used to authenticate the sales promise.
    You can either deposit the promise directly at the registration service or send it by simple or registered mail.
  • Authentic instrument established by a notary (mandatory when the seller is a natural person and the validity of the promise exceeds 18 months)

Information about you

The promise of sale must mention your respective contact details.

Information concerning the property

The promise of sale must contain the following information:

  • Address of the property
  • Origin of the property (date of the previous act of sale, name of the previous owner, notarial act...)
  • Detailed description of the property, its equipment and its annexes
  • Existence of a mortgage and/or a bondage

The promise to sell a condominium unit must also contain information specific to the co-ownership.

Sales Information

The promise of sale must contain the following information:

  • Amount of fees of the professional responsible for the sale (if a professional is involved) and who is responsible for the payment thereof
  • Sale price and payment terms (with or without the help of a mortgage)
  • Sales promise validity period and signing deadline the definitive act of sale
  • Information on the conditions for exercising the right of withdrawal: failure to comply with this obligation to provide information shall be punishable by a fine of up to €15,000
  • Date of availability of the property

FYI  

suspensive clauses may be included in the promise to sell. Thus, the sale may take place under certain conditions. City planning certificate For example, it may be obtaining an operational or building permit, obtaining a real estate loan or even work to be done by the seller before the sale.

The promise of sale must be accompanied by the Technical Diagnostic Record (DDT).

Buyer, the promise of sale must be notified. It can be delivered by hand or sent by registered letter with notice of receipt.

It should be done in 2 original copies (1 for the seller, 1 for the buyer), except in the case where a unique original is kept by a professional (notary, real estate agent).

Numerous more or less differentiated mechanisms of compensation or constraint may be provided for in a promise to sell. For example, it may be a periodic penalty payment (payment of compensation per day of delay, in particular in the case where the seller does not deliver the accommodation on the scheduled date), or a sequester which is a down payment on the total price.

Some of these mechanisms are commonly used and differ depending on the form of the promise to sell.

In a sales compromise

Clauses in the sales compromise may provide for the payment of sums of money upon signature or within a specified period.

FYI  

Demanding or receiving a payment or a commitment to pay before the end of the withdrawal period shall be punishable by a fine of €30,000.

However, before the end of the withdrawal period, a remittance request can only be authorized if you are in any of the following:

  • Promise made through a professional authorized to contribute to the sale (for example, a notary or real estate agent)
  • Or a deposit made with a professional who has a financial guarantee dedicated to the refund of the funds deposited (recommended even in the absence of a request for payment before the end of the withdrawal period)

The prepayment amount is generally fixed between 5% and 10% the selling price. He is deducted from the total price on signature of the definitive act sales.

Please note

Buyer, if you exercise your right of withdrawal, the trader must return the sums paid to you within 21 days from the day following the withdrawal.

The amount you are asked to pay is usually between 5% and 10% the selling price. It is recommended to deposit it with a professional who has a financial guarantee dedicated to the refund of the funds deposited. It can be a real estate agent or a notary. It's not an obligation, but it provides a better guarantee that the funds will be returned if necessary.

On signature of the definitive act, this amount will be deducted from the total sale price whatever the clause in the promise from which the payment was made.

Who shall I contact

Some clauses penalize you financially if you do not comply with the compromise. However, as a buyer, if the suspensive conditions are not filled and you're acting in good faith having made all the necessary steps, you cannot be sanctioned, regardless of the qualification of the payment.

A sales compromise is often accompanied by a penal clause. This clause obliges you to execute the compromise (execution forced to sell or buy). It provides for an amount of damages in the event of non-performance. For example, the seller can invoke the penalty clause if the buyer does not take steps to obtain a mortgage registered as a condition suspensive.

In the event of a dispute brought before the judicial judge, the latter may increase or decrease the amount provided for by the penal clause.

To prevent a forced execution of the sales compromise, provision may be made for the payment of an amount in respect of the credit. The credit clause allows you to waive the final sale provided you pay a lump sum. If you invoke this clause, you cannot be forced to buy or sell the housing. You will only be required to pay the financial contribution provided for in the compromise.

Contrary to the criminal clause, the amount provided for in the deduction clause cannot be adjusted by the judicial judge.

In a unilateral promise of sale

Clauses in a unilateral promise of sale may provide for the payment of money upon signature or within a specified period.

FYI  

Demanding or receiving a payment or a commitment to pay before the end of the withdrawal period shall be punishable by a fine of €30,000.

However, before the end of the withdrawal period, a remittance request can only be authorized if you are in any of the following:

  • Promise made through a professional authorized to contribute to the sale (for example, a notary or real estate agent)
  • Or a deposit made with a professional who has a financial guarantee dedicated to the refund of the funds deposited (recommended even in the absence of a request for payment before the end of the withdrawal period)

The prepayment amount is generally fixed between 5% and 10% the selling price. He is deducted from the total price on signature of the definitive act sales.

Please note

Buyer, if you exercise your right of withdrawal, the trader must return the sums paid to you within 21 days from the day following the withdrawal.

The amount you are asked to pay is usually between 5% and 10% the selling price. It is recommended to deposit it with a professional who has a financial guarantee dedicated to the refund of the funds deposited. It can be a real estate agent or a notary. It's not an obligation, but it provides a better guarantee that the funds will be returned if necessary.

On signature of the definitive act, this amount will be deducted from the total sale price whatever the clause in the promise from which the payment was made.

Who shall I contact

A unilateral promise of sale may provide for a fixed asset allowance, also known as exclusive price, at the expense of the purchaser. This compensation constitutes financial consideration in compensation for the booking of the accommodation by the seller for the benefit of the buyer during the period of the promise of sale.

The clause relating to the fixed asset allowance indicates the fate of the sums paid in the event of non-fulfillment of the promise. For example, the buyer may lose the compensation to the seller in the event that he renounces the purchase of his own will. The compensation may also be repaid to the buyer, who is obliged to renounce the purchase because of a suspensive condition not fulfilled without fault on his part.

Indeed, as a buyer, if the suspensive conditions are not fulfilled and you're acting in good faith having made all the necessary steps, you cannot be sanctioned, regardless of the qualification of the payment.

Warning  

a capital allowance of 5% minimum is mandatory for any unilateral promise of sale valid for more than 18 months and for which the seller is a natural person.

The buyer has a withdrawal period. The seller commits itself as soon as the promise is signed.

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Withdrawal period for the buyer

The withdrawal period allows you to think and give up the sale while respecting a certain time limit after the promise is signed.

You have ten calendar days to forego the sale.

This period shall begin on the day following the firstre presentation of the registered letter you notifier the promise to sell or to hand it.

Terminate sales compromise for home purchase

If the last day of the cooling-off period is a Saturday, a Sunday, a public holiday or unemployed person, the time limit shall be extended to 1er working day next.

You must notify your withdrawal to the seller by registered letter with notice of receipt before the end of the period of 10 calendar days.

Withdrawal period for the seller

You are committed as soon as the promise of sale is signed. If you challenge the sale, the buyer can seek enforcement in court, i.e., they can force you to sell the house.

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