Which clauses of the preliminary sale agreement should you check before signing to secure your buying or selling project? Are you worried that a poorly drafted clause could jeopardize your financing? How can you secure a chain sale or protect yourself from hidden defects?
The clauses of the preliminary sale agreement set out the conditions under which the transaction will go through or be cancelled. This detailed guide reviews suspensive conditions, financial clauses, and the specific mentions to include depending on the type of property.
The period between the preliminary agreement and the final deed is on average 3 months, and the 10-day withdrawal period protects the buyer. Have your clauses reviewed by a notary and contact a local Optimhome real estate advisor for personalized support.
Understanding the clauses of the preliminary sale agreement
A clause is a contractual stipulation that describes a commitment or a condition. In the pre-contract, the clauses of the preliminary sale agreement specify the parties’ obligations and guarantees.
The preliminary sale agreement is a bilateral promise (promesse synallagmatique). What does that mean? It binds the seller and the buyer reciprocally. A unilateral promise, on the other hand, grants the buyer an exclusive option during an option period. It must be registered with the tax authorities, with registration duties of around €125.
The preliminary agreement does not require mandatory registration, but it has contractual force and can be followed by an authentic deed or a private deed. To secure the preliminary sale agreement, you must draft clear clauses and attach the required documents. Using a notary is recommended for drafting the agreement through a notary. The right to withdraw from the preliminary sale agreement is governed by specific rules.
What is a clause in a preliminary sale agreement?
A clause is a provision of the contract that organizes a risk or a condition. A suspensive clause, or suspensive condition, postpones performance until the condition is fulfilled. Common example: the mortgage financing clause, which releases the buyer in case of a bank refusal. A termination clause or penalty clause provides for contract termination or compensation if one party fails to meet its obligations. Avoid vague wording. Always state amounts, deadlines, and the supporting documents required to lift or confirm the condition.
Unilateral promise vs preliminary agreement: what differences?
A unilateral promise grants the buyer an exclusive option. The promisor cannot sell to someone else during the option period. The unilateral promise must be set out by authentic deed or by a registered private deed within ten days. Registration duties are around €125. The beneficiary generally pays an immobilization indemnity of 5% to 10% of the price. If the option is not exercised, the indemnity remains due to the seller.
The preliminary sale agreement binds both parties immediately. It provides for a security deposit or down payment and often includes suspensive conditions. Choose the unilateral promise to give strong exclusivity to the buyer. Prefer the preliminary agreement when both parties want reciprocal commitment.
Essential suspensive conditions in a preliminary sale agreement
Suspensive conditions protect the buyer and secure the transaction. They must be tailored to the situation. Three clauses are often essential: the mortgage financing clause, the suspensive condition for the sale of another property, and the clause relating to the absence of registered mortgages/liens. For each clause, specify the mechanism, the deadline, the evidence required, and the consequences if the condition is not fulfilled.
An agreement overloaded with conditions weakens the seller. Conversely, an agreement without protections exposes the buyer. Find a balance and have the drafting reviewed by a professional.
Mortgage financing clause: the most important
The mortgage financing clause is mandatory (public policy) for a non-professional buyer. It allows cancellation without penalty in case of a bank refusal. The clause must indicate the loan amount requested, the maximum acceptable rate, the loan term, and the deadline for obtaining the loan. A common timeframe is 30 to 60 days; for a complex file, plan 45 to 60 days. State the documents to provide: written loan offers or written refusals from banks.
Avoid a clause that is too restrictive, which could make it ineffective. For example, an unrealistic rate cap can prevent the buyer from relying on the clause. A maximum rate of 4.3% may be stated depending on market conditions. Include the treatment of borrower insurance and how the final offer must be produced.
Suspensive condition for the sale of another property
The suspensive condition for the sale of another property protects a buyer who depends on a prior sale. It makes the purchase conditional on selling an existing home. The clause must set a minimum sale price, a deadline to sell, and proof of the property being listed for sale. A common timeframe is 3 to 6 months, often 90 days.
This mechanism is frequent in chain sales. It complicates the transaction and can extend the seller’s timeline. Negotiate an appropriate immobilization indemnity, for example 5%, to compensate for the property being tied up. Also specify the impact on the security deposit and the refund conditions.
Other suspensive and strategic clauses to include in the preliminary sale agreement
Depending on the project, include additional clauses: administrative authorizations, diagnostics, pre-emption, planning compliance. These clauses meet specific needs: extension, subdivision, environmental risk, pre-emption rights. They help avoid renegotiations or costly cancellation of the sale.
Since April 1, 2025, an energy audit is mandatory for certain homes rated E, F, or G. The EPC (DPE) is valid for ten years depending on the date. Incorporate these elements into the agreement. Draft each clause precisely. State deadlines, expected documents, and the effects of non-obtainment so the condition can be lifted or deemed not fulfilled.
Clause for obtaining an administrative authorization
The clause for obtaining an administrative authorization applies to projects requiring a building permit or a planning certificate. It may concern an extension, a subdivision, or a change of use. Specify the required document: a permit cleared of third-party appeals or a planning certificate. Set a reasonable timeframe, often 2 to 6 months depending on complexity.
You can draft it as: “subject to obtaining a permit cleared of appeals before DD/MM/YYYY.” If the authorization is not obtained, the suspensive condition allows cancellation without penalty, or a renegotiation if the parties agree.
Clause related to diagnostics, energy performance, and pre-emption
The technical diagnostic file (DDT) includes the EPC (DPE), asbestos, lead, electricity, termites, and the natural/technological risks and pollution report. These mandatory sale diagnostics must be attached. A poor EPC rating may justify renegotiation or withdrawal. The energy audit required since 01/04/2025 for certain homes must be considered. Check the EPC validity (10 years depending on the date).
The pre-emption clause concerns the urban pre-emption right (DPU), SAFER, or a tenant’s pre-emption right. The sale remains suspended until the competent body officially waives its right. Clearly state the review timelines in the clause.
Specific clauses depending on the type of property and the real estate project
Adapt the clauses to the type of transaction: condominium, off-plan new build (VEFA), rental investment, commercial premises, or life annuity sale. Each situation requires specific mentions. For condominiums, require the documents and include a clause guaranteeing the absence of major proceedings or significant voted works not disclosed. In VEFA, protect yourself with VEFA clauses: completion guarantee, delivery timelines, and late penalties. For rental investment, include clauses about energy performance and the impact on rental yield. For life annuity and commercial premises, include provisions related to the lease, indexation, or the annuity. Use a specialist for these specific files.
Clauses for a condominium purchase: minutes, proceedings, and voted works
For a condominium lot, request the statement of charges (état daté), the general meeting minutes from the last three years, and the condominium by-laws. Check the amount of service charges, voted works, and the financial situation. Look for any unpaid sums due by the seller.
Insert a clause guaranteeing the absence of major proceedings or significant voted works not disclosed. This limits the risk of unexpected costs after purchase.
Clauses for VEFA, rental investment, commercial premises, and life annuity
In VEFA, request the completion guarantee, handover procedures, and late-delivery penalties. These clauses protect the buyer against delays and non-completion. For rental investment, anticipate restrictions on renting out poorly insulated properties and include clauses regarding expected rental yield. For commercial premises, adapt clauses to the commercial lease, indexation, and any pre-emption rights. In life annuity sales, specify the lump sum (bouquet), the annuity, and any existing mortgages/liens.
Financial clauses: deposit, escrow, and penalty clause
The financial section includes the security deposit, the notary’s escrow account, and the penalty clause. The security deposit for a preliminary sale agreement is generally 5% to 10% of the price. Payment is made to the notary’s escrow account, preferably by bank transfer. Payments below €3,000 may be made by cheque.
In case of withdrawal within ten days or if a suspensive condition is not fulfilled, the down payment is refunded. In case of unjustified withdrawal, the seller may retain the deposit according to the agreed penalty clause. Specify the allocation of fees and duties, including notary fees and transfer taxes (DMTO), which are around 7% to 8% for existing properties, to be checked depending on legal changes.
Deposit, escrow, and practical arrangements
The escrow deposit is paid when signing the preliminary agreement into the notary’s account and is deducted from the purchase price at completion. Example: for a €300,000 property, a 5% deposit equals €15,000, held in escrow until completion or cancellation.
In case of withdrawal, the refund occurs within a legal timeframe, often 21 days after the formalities. Alternatives exist, such as a bank guarantee, but notary escrow remains the safest solution.
Penalty clause and consequences in case of withdrawal
The penalty clause sets compensation for non-performance. A common level is around 10% of the price. State the amount, any cap, and the conditions of application to avoid disputes. In case of disagreement, an action for termination or specific performance may be sought. Mediation or an amicable agreement often limits costs and delays. Have the clause reviewed by a notary or a specialized lawyer to ensure enforceability.
Drafting, formalities, annexed documents, practical cases, and templates
The notary checks the mortgage registry status, cadastral extract, undisclosed easements, and planning compliance. They prepare the authentic deed and handle notarized formalities. Attach to the agreement all required documents: diagnostics file, condominium statements, general meeting minutes, cadastral extract, and a planning certificate if necessary. Missing documents can delay the start of the withdrawal period.
Below is a numerical practical case and a configurable mortgage financing clause template you can copy/paste. Have templates reviewed by your notary before use.
Essential documents to attach
Attach the technical diagnostic file: EPC (DPE), asbestos, lead, electricity, termites, and the risks and pollution report. For condominiums, add the statement of charges, the condominium by-laws, and the general meeting minutes from the last three years. If works were carried out, attach the planning certificate and documents proving compliance of constructions. These documents reduce the risk of hidden defects.
Practical case: chain sale with a 5% deposit
Scenario: A signs a preliminary agreement for €300,000 with a 5% deposit (€15,000) held in escrow. A depends on selling property B. A includes a suspensive condition for the sale of another property with a 90-day deadline and a mortgage financing clause with a 45-day deadline.
If B is not sold within 90 days, the suspensive condition allows A to withdraw without penalty and the notary refunds the deposit. If A receives a loan refusal within 45 days, the mortgage financing clause also allows cancellation without loss.
Template mortgage financing clause
This sale is entered into subject to the suspensive condition that the buyer obtains one or more loan(s) for a minimum amount of [X €], for a maximum term of [Y] years and at a maximum nominal rate of [Z%] (APR if applicable). The buyer shall have [N] days from the signature of this preliminary agreement to provide the seller and the notary with written evidence of the bank’s final acceptance or a reasoned refusal. Failing production within this period, the condition shall be deemed not fulfilled.
Replace [X €], [Y], [Z%], and [N] with your parameters. Have this template reviewed by your notary.
Why be supported by a local real estate advisor
A local Optimhome real estate advisor brings precise knowledge of local prices and market conditions. They help draft balanced clauses and negotiate realistic timelines and amounts. They connect you with a notary, broker, and surveyor/diagnostics provider. Their support saves time and helps secure the transaction legally. For a personalized review of your clauses and practical help at every step, contact a local Optimhome advisor.
Conclusion
Prioritize checking the mortgage financing clause, the suspensive condition for the sale of another property if needed, and the absence of registered mortgages/liens or undisclosed easements.
Attach the technical diagnostic file, the condominium statements for condominiums, and planning documents to avoid hidden defects.
Set realistic deadlines for suspensive conditions (loan deadline 30–60 days; time between preliminary agreement and final deed ≈ 3 months) and reasonable amounts for immobilization indemnities (5%–10%).
Use notary escrow to secure the deposit and include a balanced penalty clause.
Have your clauses reviewed by a notary and contact your local Optimhome advisor for personalized support.
FAQ
What is a mortgage financing clause and how to draft it?
The mortgage financing clause makes the sale conditional upon obtaining financing. Specify the amount, maximum rate, term, and the deadline (often 30–60 days). Use the template above and have it reviewed by a notary.
What does the suspensive condition for the sale of another property cover?
This clause releases the buyer if their property is not sold by the agreed date or at the agreed minimum price. It protects a buyer who depends on a prior sale, but it can extend the overall timeline.
What penalties apply if I withdraw after the withdrawal period?
After the 10-day withdrawal period, if no suspensive condition has failed, a buyer who withdraws may lose the deposit (5%–10%), and the seller may seek termination and/or application of the penalty clause.
Which diagnostics must be included in the preliminary agreement?
The technical diagnostic file (EPC/DPE, asbestos, lead, electricity, termites, risks and pollution report) must be attached. Since 01/04/2025, an energy audit is mandatory for certain homes rated E, F, or G. Check EPC validity (10 years depending on the date).
Must a notary draft the preliminary sale agreement?
No, but it is strongly recommended. The notary secures the drafting, performs checks (mortgage registry status, easements, condominium statements), and prepares formalities up to the authentic deed. For official information on the withdrawal period, consult the service-public.fr guidance.
What is the difference between a preliminary sale agreement and a promise to sell?
The preliminary sale agreement binds both seller and buyer reciprocally from signature: each commits to sell/buy, subject to suspensive conditions. The unilateral promise to sell grants the buyer an exclusive option during a set period: the seller is bound, the buyer may exercise the option or not. The promise must be registered (within 10 days) with registration duties of around €125, and often includes an immobilization indemnity (often 5% to 10%).
How does signing a preliminary sale agreement work?
In practice, it follows several steps: confirming price and conditions, drafting clauses (especially suspensive conditions), signing by both parties, paying a deposit (often 5% to 10%) into an escrow account (often the notary’s), then the 10-day withdrawal period starts for the buyer. Next, the buyer arranges financing, conditions are lifted, and the notary prepares the authentic deed.
What is the timeframe between the preliminary agreement and the final sale?
The period between the preliminary agreement and the authentic deed is on average about 3 months. It varies depending on financing (mortgage approval), notarized formalities, a chain sale, pre-emption rights, or technical issues (mortgage/lien, easements, planning).
What obligations come with a preliminary sale agreement?
The seller must provide mandatory information and attachments (diagnostics, condominium documents if applicable, known easements, etc.) and keep the property in the agreed condition. The buyer must follow the agreed schedule (loan applications, providing evidence) and sign the deed if conditions are met. Both parties must act in good faith; unjustified withdrawal can trigger financial consequences via the deposit and/or penalty clause.
Unilateral promise or preliminary agreement: which one to choose?
Choose the unilateral promise if you want strong exclusivity for the buyer (an option) with an immobilization framework, especially when the buyer needs time to decide. Prefer the preliminary agreement when seller and buyer want immediate reciprocal commitment, while still securing the transaction through suspensive conditions (loan, sale of another property, pre-emption, planning, etc.).
What is a preliminary sale agreement?
A preliminary sale agreement is a pre-contract (bilateral promise) by which seller and buyer mutually commit to the sale, the price, and the conditions. It prepares the final sale and generally includes suspensive conditions, a timeline, and attachments (diagnostics, condominium documents, etc.).
How long does a preliminary sale agreement last?
This usually refers to the period between signing the preliminary agreement and the authentic deed: often about 3 months, but it can be shorter or longer depending on the mortgage, file complexity (condominium, planning, mortgage/lien), or a chain sale.
Who drafts the preliminary sale agreement?
It can be drafted by a notary, a real estate agency, or more rarely by the parties themselves. Drafting through a notary is strongly recommended, as they secure the clauses, check the mortgage registry status, and prepare the sale up to the authentic deed.
How to draft and sign a preliminary sale agreement?
You must include: identities of the parties, property description, price, financing terms, deadlines, deposit, suspensive conditions (loan, sale of another property, pre-emption, planning, etc.), penalty clause, and attach mandatory documents. Signature should follow careful review and validation of the clauses; use clear drafting with amounts, deadlines, and required evidence.
Where and when do you sign a preliminary sale agreement?
Most often at the notary’s office or at an agency, once essential documents are collected (diagnostics, condominium documents, financing elements). It is signed after agreement on price and conditions, and before the final formalities leading to the authentic deed.
Who owns the property after signing the preliminary sale agreement?
The seller remains the owner until the authentic deed is signed at the notary’s office. The preliminary agreement binds the parties, but transfer of ownership occurs at completion (except in very specific cases).
How much does a notary charge to draft a preliminary sale agreement?
The cost depends on how the file is handled: sometimes drafting is included in the fees related to the final sale, sometimes specific fees may apply depending on the notary office and complexity. In all cases, the notary will provide an estimate before signature.
Is a preliminary sale agreement mandatory?
No, it is not strictly mandatory: a sale may be preceded by a promise or another pre-contract. In practice, a preliminary agreement (or a promise) is very common because it secures the sale, sets suspensive conditions, and organizes the timeline before the authentic deed.
How to cancel or withdraw from a preliminary sale agreement?
A private buyer has a 10-day withdrawal period after notification and may withdraw without penalty. Outside this period, cancellation is possible if a suspensive condition is not fulfilled (for example, a loan refusal that meets the clause terms) or by mutual agreement. If the buyer withdraws without a valid contractual reason, they risk losing the deposit and/or triggering the penalty clause.
Which documents are needed for a preliminary sale agreement?
You must attach mandatory documents, especially the technical diagnostic file (EPC/DPE, asbestos, lead, electricity, termites, risks and pollution report). For condominiums: condominium by-laws, general meeting minutes, charge information, and related documents. Depending on the property and project: planning documents (for example a planning certificate) and useful information on easements, mortgages/liens, etc.
Author :
Fabrice DOBROWOLSKI - Optimhome Network Development Director
Optimhome offers you personalized support for your real estate project. Benefit from all my advice, based on several years of experience, to ensure the success of your project.
