Buying A Property Subject To The Sale Of Your Own
- RHC Solicitors
- Jul 7
- 6 min read
Updated: Jul 11
If you're in the market for a new home but haven’t sold your current property, you may be wondering if it's possible to buy before selling, and how to navigate such a transaction smoothly.
Many buyers choose to put in an offer on a property before their existing home is sold. There are several reasons for this, including locking in interest rates with a lender, discovering their dream home on the market, needing more space for a growing family or relocating for a new job.
If you’re facing the decision to buy before selling, there are a few strategies that can help ensure the transaction works in your favour.
What Is A Subject To Sale Clause?
A subject to sale clause allows you, as the buyer, to make your purchase conditional on the sale of your existing property. Unlike finance or building and pest conditions, a subject to sale clause is not a standard clause under the standard REIQ Contract of Sale. Instead, it must be carefully drafted and inserted as a special condition by your solicitor or real estate agent.
This approach can offer peace of mind, but also carries legal and financial implications that must be properly managed. At RHC Solicitors, we work closely with buyers across Queensland to ensure their contracts are secure, compliant and tailored to their unique circumstances. A vague or poorly structured clause could leave you exposed to legal or financial risk.
What Should A Subject To Sale Clause Include?
An effective subject to sale clause should specify:
The address of the property the buyer is selling
The deadline by which the buyer must enter into a contract for the sale
The settlement date required for the sale to proceed (or alternatively a contemporaneous settlement clause)
What happens if the buyer does not meet the sale or settlement deadline
Any provisions regarding extensions, notices or termination rights for either the buyer or seller
A solicitor will tailor the clause to reflect your specific property and time frame, while also accounting for the expectations of the seller.
Sunset Clauses
As a subject to sale clause is nearly always for the benefit of the buyer, it is common for sellers to want to continue to market the property whilst the contract is still conditional on finance, due diligence, building and pest etc.
This clause, offered referred to as a sunset clause, gives the seller the right to keep advertising the property and to accept another offer. If that happens, the seller is generally required to issue a notice to the original buyer, who will have to:
Make The Contract Unconditional
The buyer must waiving the benefit of any conditions (building, finance, subject to sale special condition etc.), or
Terminate The Contract
This allows the seller to proceed with the new offer
The terms and deadlines for a sunset clause should be drafted by a qualified lawyer or real estate agent, and we would recommend any buyer or seller presented with such a contract to have it reviewed by an experienced property lawyer before signing it.
Benefits Of Buying Subject To Sale
Including a subject to sale condition in your contract can offer several practical and financial advantages, particularly if you’re looking to manage the transition between properties with minimal risk.
Reduces Financial Pressure
You won’t be locked into two different properties or left juggling multiple mortgages. The clause should always provide termination rights for the buyer if they cannot secure a buyer for their sale.
Time to Prepare
You’ll have a structured timeline to sell, settle and prepare for your move, helping reducing stress whilst keeping everything organised.
Flexibility In A Balanced Market
In a slower or balanced market, sellers may be more open to offers with a subject to sale clause, particularly if your property is already listed or under contract.
Flexible To Your Needs
You can sell your property at market value rather than being rushed into accepting a low offer just to meet a settlement deadline.
Risks Of Buying Subject To Sale
While a subject to sale clause can provide valuable protection, it’s important to be aware of the potential risks and limitations that come with this type of arrangement.
Less Competitive Offer
In a strong seller’s market, your offer may be less attractive than an unconditional one. Sellers may prefer certainty and speed.
Continuation Of Advertising Clause Risk
You could lose the property if the seller receives a more favourable offer and you’re not in a position to go unconditional within the notice period.
Timing Pressure
Even with conditions in place, tight deadlines can create pressure to accept an unfavourable offer on your sale property just to satisfy the condition.
Bridging Finance Risks
If you’re forced to waive the subject to sale clause under a sunset clause, you may need bridging finance, which can be expensive and comes with its own risks.
A quick note: We would generally recommend that where a buyer does not have unconditional finance approval before the deadline of a sunset clause notice, that it is in their best interest to terminate the contract in case any finance application was ultimately rejected.
Contractual Uncertainty
If your special condition is not carefully drafted, you could find yourself in breach of contract or financially exposed. This is where engaging a reputable property lawyer will ensure any special condition is not only drafted properly, but is also in your best interests.
Quick Tips For Buyers
If you’re considering making an offer subject to the sale of your property, careful planning and professional advice can make all the difference. Here are some key tips to help you navigate the process successfully:
Get Your Property Listed Early
If you're planning to buy subject to the sale of your current property, having your home already listed for sale, or even under contract already, strengthens your position with the seller. It shows you're serious and ready to move quickly, making your offer more attractive
Obtain Legal Advice
A solicitor can draft or review the subject to sale and sunset clauses to protect your interests and ensure they are worded correctly. They can also explain your rights and obligations, and help you make informed decisions every step of the way.
Have Your Finance In Order
Speak with your broker, financial advisor or any lender about your finance options and what needs to be done to avoid any delays. Having your finance arranged in advance gives you flexibility, strengthens your offer, and puts you in a better position to make confident decisions under time pressure.
Allow Enough Time
Ensure your sale and settlement deadlines are realistic for both transactions. This means factoring in how long it may take to find a buyer, allowing for standard contract conditions (e.g. building and pest or finance), and coordinating with your buyer’s settlement timeline. Rushing these dates can lead to unnecessary stress, forced price reductions during any negotiations or a failure to meet your obligations under either or both contracts.
Make Both Settlements Contemporaneous
Where possible, aim to have the settlement of your sale and the purchase occur on the same day. This can streamline the process, reduce the need for bridging finance, and ensure funds from your sale are immediately available for your purchase.
Have One Law Firm Handle Both Transactions
Engaging the same law firm to handle both your sale and purchase ensures better communication, fewer delays, and a clearer understanding of how each contract impacts the other. It also makes it easier to coordinate settlement dates, manage special conditions, and keep everything running smoothly.
Be Responsive
Clear and prompt communication with your solicitor, real estate agent and lender is crucial throughout the process. Delays in responding to requests, signing documents or providing information can cause unnecessary hold-ups or result in missing critical deadlines.
How RHC Solicitors Can Help
At RHC Solicitors, we understand the complexities of buying subject to sale, sunset clauses and contemporaneous settlements. Our dedicated paralegals and experienced lawyers are ready to help draft and/or review any necessary special conditions to ensure they comply with the latest property legislative requirements, are in your best interests and meet your specific needs.
Through our affordable fixed-fee conveyancing service, we can also help manage all aspects of your transaction for start to settlement, and ensure both properties settle on time and without unnecessary complications., Why not get a free no-obligation quote below to get started.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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