Contents:
Introduction: What is a promesse unilatérale de vente?
? Promesse de Vente
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A promesse unilatérale de vente is a preliminary contract by which a seller undertakes to reserve the sale of a property to a potential buyer for a specified period. During this period, the buyer benefits from an exclusive option on the property, without being committed to buying it. This legal mechanism, which is widely used in real estate transactions in Senegal, represents a secure first step before the final deed of sale is signed.
In Senegal, where the real estate market is experiencing sustained growth, particularly in Dakar and tourist areas such as Saly and Mbour, the unilateral promise of sale is of particular importance. It offers investors, whether local or foreign, a legal tool to secure their acquisition project, while giving them the time they need to finalize the essential verifications and raise the necessary financing.
How does the unilateral promise of sale work?
The unilateral promise of sale in Senegal is based on a firm commitment by the seller, while the potential buyer is free to decide for the duration of the contract's validity. This asymmetry in the parties' commitment is the essential feature of this type of contract.
Contract structure
A unilateral promise to sell has several fundamental elements:
- Validity period This period, generally between 1 and 6 months, defines the time during which the buyer can exercise the purchase option.
- Sales price This is definitively fixed in the contract and cannot be modified.
- Conditions precedent These are clauses conditioning the completion of the sale, such as obtaining a bank loan, verifying the authenticity of the land title, or the absence of servitudes.
- Immobilization indemnity deposit: sum paid by the potential buyer, generally between 5% and 10% of the sale price, which will be lost if he or she renounces the purchase without a legitimate reason.
Difference from a synallagmatic promise
Unlike the unilateral promise, the synallagmatic promise (also known as the compromis de vente) binds both seller and buyer. In this case, the two parties mutually bind themselves, one to sell, the other to buy, subject to the fulfillment of suspensive conditions. In Senegal, the unilateral promise is often preferred, as it offers greater flexibility to the potential buyer.
The notary's role
Although the unilateral promise of sale can theoretically be drawn up under private signature, the involvement of a notary is strongly recommended in Senegal.
Notary :
- Checks the legal status of the property
- Drafts the contract in compliance with Senegalese legislation
- Authenticates the deed, giving it superior probative value
- Advises parties on the clauses to be included to protect their interests
This professional intervention considerably secures the transaction, which is particularly important in a context where land disputes are frequent.
See as well : article on the role of notaries (in ?Lois immobilières?)
Practical example of a unilateral promise to sell
To illustrate the mechanism of the unilateral promise of sale in Senegal, let's consider the following scenario:
Mr. Diallo wants to buy a building plot in the Almadies district of Dakar. He spotted a plot of land belonging to Mr. Sow that interested him. He liked the property, but before making a final commitment, Mr. Diallo wanted to check the authenticity of the land title and obtain a preliminary building permit for his residential building project.
Contract content
The parties, assisted by a Dakar notary, draw up a unilateral promise to sell with the following features:
- Precise description of the property Undeveloped land with a surface area of 500 m², located in Almadies, Lot n°127, Titre Foncier n°12345/DK".
- Price list 50 million FCFA
- Immobilization indemnity 5 million FCFA (10% of the price)
- Option duration 3 months
- Conditions precedent :
- Verification of the authenticity of the land title with the Land Registry
- Obtaining a positive planning certificate
- No undeclared mortgage or servitude
On signature of the promise, Mr Diallo pays the immobilization indemnity of 5 million FCFA, which will be deducted from the sale price if he exercises the option, or retained by Mr Sow in the event of withdrawal without justification linked to the suspensive conditions.
Transaction result
During the 3-month option period :
- Mr. Diallo can carry out any necessary checks
- Mr. Sow can no longer sell the land to another buyer
- The price has been definitively fixed, protecting Mr. Diallo against any possible increase.
In our example, Mr. Diallo notes that the land title is authentic and obtains his town planning certificate. He therefore decides to exercise the option before the 3-month period expires. The parties can then proceed to sign the final deed of sale, with the immobilization indemnity deducted from the final price.
This transaction is a perfect example of how the unilateral promise secures the interests of both parties: Mr. Diallo was able to take the time he needed to carry out his checks without the risk of the land slipping away, while Mr. Sow benefited from a financial guarantee in the event of unjustified withdrawal.
Advantages and limitations for buyers
The unilateral promise of sale has many advantages, but also certain limitations that should be fully understood before committing to this type of contract in Senegal.
Advantages for the buyer
- Time for reflection and verification The buyer has a defined period in which to carry out all the necessary checks on the property (authenticity of land title, absence of easements, urban planning compliance) without fearing that the property will be sold to a third party.
- Protection against overbidding As the price is fixed in the promise, the buyer is protected against any increase, even if the value of the property appreciates during the option period.
- Securing the property During the term of the promise, the seller can no longer offer the property to other buyers, which is particularly valuable in high-demand areas such as Dakar-Plateau, Almadies or Ngor.
- Flexibility In contrast to the compromis de vente, the buyer is not obliged to buy (unless specific conditions are stipulated in the contract), which gives him a more comfortable position.
- Possibility of including suspensive conditions The buyer can make his purchase conditional on obtaining a bank loan, planning permission or other factors that will determine his project.
Limits and precautions
- Cost of immobilization indemnity This sum, generally non-refundable in the event of renunciation without legitimate reason, represents a significant financial risk for the buyer.
- Notary fees : Drawing up a unilateral promise to purchase involves notary fees, in addition to those for the final deed.
- Rigid clauses Once the promise has been signed, the buyer is bound by its terms, and generally cannot renegotiate the price or the main conditions.
- Limited duration If the buyer does not exercise the option within the allotted time, he loses his preferential acquisition right and his earnest money.
Practical advice
To get the most out of a promesse unilatérale de vente, it is advisable to :
- Include specific verification clauses concerning the land title and its conformity
- Include a financing condition precedent if necessary
- Negotiate sufficient time to complete all administrative checks and procedures
- Calling on a notary experienced in real estate transactions in Senegal
- Check that there are no outstanding disputes concerning the property with the relevant courts.
By following these precautions, the buyer will be able to benefit fully from the advantages of the unilateral promise while minimizing the associated risks.
See as well: the article on land title verification.
Steps for drafting a unilateral promise of sale
Drawing up a unilateral promise of sale in Senegal follows a methodical process that helps secure the future transaction. Here are the essential steps to follow when drawing up this pre-contractual document.
Step 1: Identify the property and determine the price
This first fundamental step consists of :
- Gather all information concerning the property: exact address, cadastral references, land title number, surface area, etc.
- Draw up a detailed description of the property and its outbuildings
- Verify the seller's beneficial ownership with a recent certificate of ownership
- Negotiate and set a firm and definitive price
- Determine the amount of the immobilization indemnity (generally between 5% and 10% of the total price)
We recommend that you visit the property with the seller and document its condition with photographs, which can be appended to the promise to purchase.
Step 2: Consult a notary to draw up the contract
Although the promise can theoretically be drawn up privately, the involvement of a notary is strongly recommended in Senegal for :
- Check the legal and administrative status of the property
- Make sure the seller is the rightful owner
- Drafting a contract that complies with Senegalese legislation
- Advise parties on clauses to be included
- Authenticate the deed, giving it superior probative value
The notary will make prior enquiries with the Land Registry to ensure that there are no legal obstacles to the sale.
Step 3: Include suitable suspensive conditions
Suspensive conditions are crucial elements that protect the buyer. They must be carefully drafted and may include :
- Obtaining bank financing (specify amount, maximum rate and term)
- Verification of land title authenticity
- The absence of easements, mortgages or disputes affecting the property
- Obtaining a positive building permit or planning certificate
- Favourable soil studies (particularly important for building plots)
Each condition must be accompanied by a specific performance deadline, generally included in the overall option period.
Step 4: Sign promise and pay earnest money
The promise to purchase is usually signed at the notary's office, in the presence of the parties. On this occasion :
- The notary gives a full reading of the contract and explains the commitments of each party.
- The parties sign the document
- The purchaser pays the immobilization indemnity
- The notary gives a copy of the contract to each party
The indemnity can be paid directly to the seller, but it is preferable to deposit it with the notary, who will hold it in escrow until the sale is completed or fails.
The promise must specify the deadline for exercising the option, and how this is to be done (usually by registered letter with acknowledgement of receipt, or by declaration before a notary).
Once these steps have been completed, the buyer has the option period to carry out his or her checks and formalities, while the seller is committed to reserving the property for the buyer. If the buyer exercises the option within the allotted time, the parties can proceed to the signing of the final deed of sale.
See as well: The section on purchasing procedures in the article on Real estate laws in Senegal.
Conclusion: A key tool for securing your purchase
The unilateral promise of sale is a valuable legal instrument in the Senegalese real estate context, where securing transactions is a major challenge. This preliminary contract strikes a balance between protecting the seller's interests and giving the buyer the flexibility he needs to finalize his purchase project with complete peace of mind.
By reserving the property for a fixed period, while allowing the buyer to carry out the necessary checks, the unilateral promise of sale is perfectly suited to the needs of the Senegalese real estate market, which is characterized by strong competition in sought-after areas and the need to carry out in-depth checks on title deeds.
To guarantee the validity and effectiveness of this contract, we strongly recommend that you consult a specialist notary, who will be able to tailor the wording to your specific situation. Although this approach represents an initial cost, it is a wise investment to avoid future disputes and secure your property purchase.
If you'd like to find out more, take a look at our detailed articles on the legal risks involved in real estate transactions in Senegal, and on the complete process of acquiring property in this country with its many opportunities but sometimes complex legal framework.
See as well: The section on legal risks in the article on legal risks.