When it comes to buying property, we often think of the critical 2 to 3-month period between the initial handshake and the final signature at the notary’s office. A period prone to problems when nothing is formalized: the seller changing their mind or accepting a higher offer, the buyer backing out, a disagreement over the condition of the property upon delivery, what happens to fixtures, easements, etc. The preliminary agreement is therefore much more than bureaucratic paperwork — it gives legal value to what was previously just an intention. But which type of preliminary agreement should you choose: sales agreement, unilateral promise, or right of first refusal? What precautions should be taken during drafting? Here’s everything you need to know.
The Different Types of Preliminary Real Estate Contracts
The Sales Agreement
This is the most common preparatory contract. Both seller and buyer are mutually bound as soon as it is signed (Article 1589 of the French Civil Code). Only the official transfer of ownership is postponed until the signing of the final notarial deed. However, this commitment is not truly “final” in the strict sense, as a few mechanisms allow the parties to withdraw.
Its key advantages:
- Locks in key elements such as the firm and final price, payment terms, and a deadline to sign the final deed.
- Protects the buyer from events that could make the purchase impossible or too costly. Common suspensive conditions include obtaining a mortgage (the sale only goes through if the buyer secures financing) or the absence of easements (the buyer can withdraw if a construction ban is discovered).
- Protects the seller through the security deposit (5–10% of the sale price), which will be retained if the buyer backs out without a serious reason.
The Unilateral Promise to Sell
In a unilateral promise to sell, it is the seller alone who commits to selling, at the agreed price and conditions. The buyer is given an option (usually 2 to 3 months) to confirm the purchase, but is not obligated to do so (Article 1124 of the Civil Code).
Its key advantages:
- Secures the property and the price without a firm commitment from the buyer — ideal in case of doubt or further verifications (soil studies, zoning changes, major renovations)
- Gives time to set up financial arrangements (tax optimization, real estate holding companies, bridge loan) or to sell the current home
- Includes a holding indemnity (5–10% of the price) paid to the seller, who keeps it if the option is not exercised — balancing the agreement
The Right of First Refusal (Pacte de Préférence)
The owner grants a “right of first refusal” to the beneficiary. If they decide to sell, they must first offer the property to the beneficiary under the same conditions as to any other potential buyer (Article 1123 of the Civil Code). Caution is advised: while useful, the pact is complex to manage. The scope must be clearly defined from the start — does it cover all or part of the property? What changes are anticipated? All of this needs to be carefully reviewed.
Its key advantages:
- Gives the right of first refusal without blocking the sale or setting a price in advance
- Provides options for tenants interested in buying eventually, or for neighbors wanting to consolidate land ownership
- Can be valid indefinitely (unless otherwise specified), but any oversight can weaken the agreement!
The Offer to Purchase
Less common, it formalizes the buyer’s firm commitment to purchase at a given price. However, there is no reciprocal commitment from the seller. Typically, prospective buyers set a short validity period (15 days to 1 month) to encourage a prompt response from the seller and avoid being unnecessarily bound.
Its advantages:
- Reassure a hesitant seller with a strong commitment
- Test the seller’s actual intentions before incurring any costs
- Avoid bidding wars by displaying a firm stance
Private or Authentic Preliminary Contract? Criteria for Choosing
Private Agreement: Flexibility, Speed, Affordability
This is the most common and most affordable option. You draft the preliminary contract yourself on plain paper, according to your terms, and sign it directly between parties. Here are three key advantages:
- First, flexibility: you control the drafting, timelines, and conditions. Ideal for simple or specific situations that don’t require extensive formalism.
- Next, speed: no need to wait for a notary appointment—you can finalize in a few days. Valuable in high-demand areas or for highly sought-after properties like those in Paris real estate listings.
- Finally, cost: apart from possibly hiring a professional (real estate agent, lawyer) to help you draft it, costs are minimal. Only optional tax registration (highly recommended for dating the document) costs about €125.
However, be aware of the limits in terms of legal security. You won’t benefit from the notary’s expert advice or thorough checks. And be cautious with required legal mentions! This lighter approach carries some risk, which must be weighed against the benefits.
Authentic Act: Legal Security and Guidance
Contrary to popular belief, using a notary is not limited to the final deed of sale. Many preliminary contracts are signed as authentic deeds due to obvious legal security needs:
- First, personalized advice from a public officer:a reminder: a seasoned and impartial legal professional. They help draft a tailored and balanced preliminary agreement, and assist in the following key steps of a real estate purchase.
- Next, necessary verifications: such as requesting prefectural authorization, verifying the parties’ civil status and capacity, and collecting additional documents (property titles, co-ownership rules, general assembly reports)… Thorough checks that may highlight issues to address before signing definitively.
- Finally, legal formalities: guaranteed registration within deadlines, proper publications, mandatory notifications, etc. A follow-up that ensures enforceability against third parties and authorities.
The authentic deed carries stronger evidentiary value than a private agreement: its date, contents, and the identity of signatories are presumed accurate until proven otherwise. The notary also ensures the deed’s preservation in their register and can issue certified copies at any time. Only downside: the additional formalism comes at a cost—expect to pay between €150 and €300 for an authentic preliminary agreement.
When is a notarial preliminary contract required?
Some specific situations make the use of a notary highly recommended, or even mandatory:
- Sales involving a vulnerable person (minor, protected adult) or where legal capacity is uncertain
- Complex transactions: income-producing buildings, multiple lots, SCI setups, joint ownership, life annuity, or presence of easements
- Sales requiring specific formalism: mortgaged properties, buildable land, lots from recent subdivisions, or pre-emption rights
- Purchases by non-residents: requiring special administrative authorizations
And more broadly, any transaction involving high financial stakes, where security is paramount!
What are the steps to drafting a solid preliminary agreement?
Step 1: Gather all information about the parties and the property
For the parties, check and update civil status information (name, first name, date and place of birth, occupation, nationality, residence, marital status, applicable regime). In case of a sale by a company, attach a recent KBis extract. For a non-resident foreign buyer, prepare a detailed note on their situation.
For the property, the information required varies depending on whether it’s a standalone building or part of a co-ownership. Property title, cadastral references, updated plans and property valuation are always required, as are the valid technical diagnostics and the status of easements and mortgages.
In co-ownership, also include the co-ownership regulations and descriptive division, recent general meeting minutes, information on co-ownership charges and any voted or planned works, etc.
Step 2: Draft the clauses
Your file is complete and the content carefully thought out? Now it’s time to write out the following key clauses, one of the most technical steps of a property sale:
- Full identity and civil status of the parties
- Detailed description of the property (location, cadastral reference, surface area, type, co-ownership designation)
- Price and payment terms (total price, down payment, mortgage if applicable)
- Deadline for signing the final deed
- Suspensive conditions (loan, planning, no easements, preemption rights)
- Security deposit (amount, escrow)
- Entry and exit condition reports
- Penalty clause in case of breach
- Mandatory annexes: valid diagnostics, co-ownership rules, list of easements, etc.
Other helpful clauses may be added depending on your case: substitution clause for a family SCI, seller’s specific disclosures (work, damages), area guarantee, extension deadlines… All to be tailored to your needs, keeping legal security top of mind.
Pay special attention to how suspensive conditions are worded. They must be precise, with no ambiguity or vague terms. For instance, specify the loan condition in detail (rate, term, institutions, approval and fund release deadlines, required supporting documents…).
Step 3: Sign the preliminary agreement
First basic precaution: verify the identity and legal capacity of the signatories. Make sure names and civil status are correctly stated, and that all parties are present or properly represented. For legal entities, signature authority must be verified (KBis extract, board minutes, company statutes).
In terms of form, the first requirement is to have enough original signed copies: one for each party, plus one for registration. All must be strictly identical and complete, including annexes. This is important to determine the time between the preliminary agreement and the deed of sale.
Each page must be initialed, and the last one must include the handwritten statement “Read and approved – Agreed” before signature. These simple formalities help avoid disputes and reinforce the legal strength of the document.
Beyond the technicalities, don’t forget the human aspect of this exchange. It’s arguably the cornerstone of private sales—a mutual commitment discussed and made with full awareness.