Real estate sale: can you back out after the promise/offer (accepted) or the preliminary agreement?
- May 14
- 4 min read
An offer has been accepted or a preliminary agreement signed… then an unforeseen event occurs or doubt creeps in. Is it still possible to back out? The answer lies in a few key principles.
Once the offer is accepted or the preliminary agreement is signed, the sale is completed.
In Belgium, a sale is consensual : an agreement on the object and the price (as well as – if the parties have stipulated it – any elements they deem essential) is sufficient to constitute a binding sale . A preliminary agreement is not required: an accepted offer or promise can suffice. The parties are then already bound, even if the notarial deed has not yet been signed (the deed serves primarily for registration and enforceability against third parties).
In practice, it is common to stipulate that the transfer of ownership and risk, as well as full payment of the price, will only occur upon the execution of the notarial deed. The sale is therefore formed as soon as the agreement is reached, but the legal and financial "handover" takes place at the notary's office.
Can we retract our decision?
In principle, no. Once the sale is concluded (offer/promise accepted or preliminary agreement signed), each party must fulfill its obligations. However, there are some cases in which one of the parties can withdraw without being at fault .
Suspensive condition not met
If the contract contains a suspensive condition – for example, obtaining credit – and the bank refuses the loan despite a complete and serious application , the sale falls without fault .
Currently, this clause is not mandatory , which can sometimes lead to difficult situations in the event of financing problems. Given its practical importance, the Federal Minister for Consumer Protection, Rob Beenders (Vooruit), has announced his intention to make a financing contingency condition mandatory, under penalty of invalidating the sale (a measure to be monitored until formal legislation is adopted).
Vote of consent
The sale could also be cancelled if the consent of one of the parties is vitiated. This can result from fraud ( deception), mistake ( regarding an essential characteristic) or duress ( unfair pressure).
We think, for example, of the seller who deliberately hides soil pollution or a structural defect in the building, or of the buyer who is legitimately mistaken about an essential characteristic of the property (for example, land not suitable for building or property unsuitable for the agreed use), or even of the sale which results from threats or unfair pressure.
Huge injury
In matters of real estate sales, there is a specific case of nullity of the sale, namely, enormous lesion .
If, on the day of the sale, the seller received a price less than 5/12 of the actual value, they have two years to contest the transaction. The buyer can avoid the sale being declared null and void by paying a supplemental price, generally determined by a judge after an expert appraisal.
Administrative police
Administrative regulations ( land use planning and urban development, environment, housing, etc.) are increasingly impacting real estate sales: certain information is mandatory from the moment the property advertisement and the preliminary agreement are made (urban planning situation, certificates, etc.) in order to give the buyer the technical and important information relating to the property.
Failure to comply may result in sanctions , or even the cancellation of the sale, and may engage the liability of the seller and other parties involved.
Thus, it has already been ruled in the Flemish Region that a buyer could obtain the cancellation of the sale due to late communication of the soil certificate by the seller.
Retracting without reason: what are the consequences?
Changing your mind unilaterally and without valid reason can be costly , for both the seller and the buyer.
Unless otherwise stipulated in the contract, the "victim" party may either force the sale through legal proceedings or claim damages , which are usually fixed as a lump sum in the agreement at 10% of the sale price.
How to avoid unpleasant surprises?
Before signing, a few simple steps can prevent a lot of trouble:
Have the offer/agreement reviewed by a lawyer or notary .
Include conditions precedent for future and uncertain elements (e.g., bank financing);
Specify , in the offer, promise or agreement, all the elements that the parties consider essential (these are the "substantive elements");
Reduce the risk of vitiated consent by specifying known pollution, structural defects, disputes, etc.
Postpone the transfer (ownership, risks, taking possession) and payment until the authentic deed .
Key takeaway : accepting an offer or signing a preliminary sales agreement is already a sale… or a purchase . Reversal is only possible in specific cases . Anticipating and securing the transaction—through a few well-drafted clauses and prompt legal advice—often prevents costly complications.
This article is for informational purposes only and does not constitute legal advice. For any specific questions, it is recommended that you consult a legal professional.
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