No, when selling real estate, it is not “necessary” to sign a preliminary agreement – the law does not require it to always be concluded. The main purchase-sale agreement in notarized form is necessary when ownership is actually transferred.
When is a preliminary agreement actually needed (in practice)
A preliminary agreement is usually signed when you cannot conclude the transaction immediately at the notary’s office, but you want to “fix” the agreement, price, and terms.
Typical cases:
- The buyer is purchasing with a bank loan – time is needed for appraisal, credit decision, and agreement on terms; it is worth clearly stipulating in the preliminary agreement what happens if the loan is not obtained.
- Documents / consents need to be collected (from co-owners, spouse, institutions, community, etc.) or “papers” need to be arranged before the notary.
- There are encumbrances or obstacles that need to be removed (mortgage, arrest, debts, register discrepancies, incomplete registration, etc.) – a preliminary agreement allows to agree on who arranges what by when.
- New construction / purchase from a developer “off-plan” – when the object will be completed later, and the buyer wants to reserve the price and terms.
- “Chain” transactions (I sell to buy another) – time is needed to coordinate dates.
What is important to know legally
- A preliminary agreement must be in writing, otherwise it is invalid.
- It must include a deadline by which the main notarized agreement is concluded (if not specified – the 1-year rule applies).
- If a party unjustifiably avoids concluding the main agreement, it must compensate for damages.
- If the deadline expires and the main agreement is not concluded – the obligation to conclude it ceases (unless the parties agree otherwise, e.g., extend it).
When it is better not to write a preliminary agreement (or it can be omitted)
If everything is “clear” (documents are in order, the buyer has funds, there are no obstacles) – it is often more rational to go directly to the notary and not create additional risk due to inaccurately formulated terms.