Most preliminary sales agreements for real estate will contain a suspensive clause stipulating that the sale will only occur if the buyer obtains a mortgage from a bank within a given deadline.

The buyer shall then take all the necessary steps to obtain financing for the purchase.

However, it often happens that the preliminary sales agreement also stipulates that the parties must sign the deed of sale before a notary by a certain date or within a certain period.

The question then arises as to what happens to the preliminary sales agreement if the time limit for passing the deed before the notary expires.

Does the expiry of the time limit causes the preliminary sales agreement to be null and void?

According to the Case law, it is the intention of the parties on the day of the conclusion of the preliminary sales agreement that should be analysed to answer this question.

It is therefore necessary to determine whether, on the day of signing the preliminary sales agreement, the parties intended to make the validity of the sale conditional on the signing of a deed in front of the notary until a certain date and if the parties intended the preliminary sales agreement to become void if the parties did not appear in front of the notary before the deadline mentioned in this agreement.

If this intention of the parties is not proven, and if no consequence or sanction is stipulated in the preliminary sales agreement in the event of the expiry of the deadline for signing the notarial deed, the Case Law has considered that the preliminary sales agreement is not automatically null and void, despite the expiry of the deadline and that the parties are still bound by the terms of the preliminary sales agreement.

It should be reminded that the clauses of a provisional sale agreement must be drafted with the utmost care to reflect the intention of the parties and ensure their legal security.