Buying a property that is subject to the sale of another property is common and REIWA agents are well equipped to ensure the sale agreement is procedurally correct.
Normally, these agreements enable the seller to continue to promote their property for sale and, in the event of receiving an alternate offer to purchase (normally not subject to the sale of that buyer’s property), give notice to the first buyer of their intention to proceed with the second offer after two business days.
This colloquially termed ‘48 hour clause’ provides the original buyer two business days to obtain an offer on their property or waive the benefit of the subject to sale condition.
Certainly, these arrangements can get tricky. Agents need to be especially careful not to prejudice the second party by giving the first buyer a hint that a second offer might be on the way.
Notices served between the parties must also be technically compliant to ensure neither party are unfairly advantaged.
Importantly, seller ought to know that when accepting a ‘subject to sale’ offer at say $500,000, this then binds them to that sale price within the 48 hour period – even if a second unconditional offer is superior on terms or in price (provided the original buyer choose to make their offer unconditional within the 48 hour time frame).
Although this type of sale requires more careful attention, contracts for sale that include the ‘subject to sale’ condition, often succeed and proceed smoothly to settlement.
This type of sale also has the potential to advantage the seller, with the buyer often paying a premium for the privilege and protection of settling after the guaranteed sale of their own property.
Given the conditional nature of the sale, sellers are justified in asking for a higher price from the subject to sale offer.
There have been instances where the seller rejected a ‘subject to sale’ offer at a premium price, only to have that same buyer return to the same property after they’ve sold and pay a lower price.
I would advise sellers to consider all offers presented to them, including those that are subject to sale. It’s in your best interest to give consideration to all serious buyers as this can often lead to other buyers committing to an offer once they know other parties have expressed an interest to buy.
Author: REIWA President Hayden Groves