What Is a Private Agreement?
A private agreement (acte sous seing prive) is a contract drafted and signed directly between the parties, without the involvement of a public officer (notary, bailiff). In real estate, it stands in contrast to the notarized deed (acte authentique), which must be drafted and authenticated by a notary.
Despite its lack of formality, a private agreement has full legal validity between the signatories. It binds the parties from the moment of signature, subject to any conditions precedent it contains.
Common Private Agreements in Real Estate
The purchase offer is the most frequent document. The buyer formalizes in writing their intention to purchase at a given price. If the seller accepts, the agreement is formed. In practice, the offer is almost always a private agreement.
The preliminary sales agreement (compromis de vente, or synallagmatic promise) can be signed as a private agreement or before a notary. In Paris, the majority of preliminary agreements are signed at the notary’s office, but the law does not require this formality. The only exception: if the preliminary agreement covers a property with a validity period exceeding 18 months, notarization becomes mandatory.
The unilateral promise of sale, on the other hand, must be registered within 10 days with the tax authorities if it is a private agreement, under penalty of nullity. This is a constraint that is often overlooked.
Advantages and Limitations
A private agreement offers speed and flexibility. It can be signed immediately, without a notary appointment, and the parties are free to draft the clauses. The cost is zero (no drafting fees).
In return, it does not benefit from the evidentiary force of a notarized deed. It is not enforceable against third parties until it has been published at the land registry. In the event of a dispute, the burden of proof can be more complex. And above all, it is not reviewed by a legal professional, which exposes the parties to drafting errors.
Risks to Be Aware Of
The main risk is forgetting or poorly drafting the conditions precedent. A private preliminary agreement that does not properly mention the condition precedent for obtaining a loan exposes the buyer to losing their deposit in the event of a bank refusal.
Another risk: a poorly drafted private agreement can be reclassified or annulled. Ambiguous clauses are interpreted by the judge, sometimes to the detriment of the party who drafted them.
In Paris, where the amounts at stake regularly exceed 500,000 euros, the consequences of a legal error are considerable. This is why virtually all professionals recommend going through a notary for the preliminary sales agreement.
Our Recommendation
At Home Select, we systematically recommend signing the preliminary agreement at the notary’s office. The additional cost is minimal (often included in the final deed fees), the legal security is incomparable, and the notary verifies the diagnostics, easements, urban planning rules and the mortgage status of the property.
For the purchase offer, however, a private agreement is the norm. Our property hunters draft structured offers, with the mandatory mentions and conditions precedent tailored to your situation, to protect your interests from the very first step. Discover our support process.
FAQ
Is a private preliminary agreement valid?
Yes, legally it has the same value as a notarized preliminary agreement between the parties. However, it does not have a certified date and is not enforceable against third parties until it is published.
Can you withdraw after a private agreement?
The buyer benefits from the legal withdrawal period of 10 days after signing the preliminary agreement, whether it is a private or notarized agreement. This period runs from the notification of the deed by registered letter.
What is the difference between a private agreement and a notarized deed?
A notarized deed is drafted by a notary, has a certified date, evidentiary force and enforceability. A private agreement is drafted by the parties, has no enforceability and is not enforceable against third parties without publication.
Is a notary required to sign a purchase offer?
No. A purchase offer is a private agreement by nature. However, it must contain certain mentions to be valid: identification of the parties, description of the property, proposed price, validity period and conditions precedent.