What is the Difference between Sale and Agreement to Sell?

This is difference between sale and agreement to sell

Sale and agreement to sell, are two terms that are often used interchangeably, but they denote very different meanings. While a sale refers to the immediate transfer of property ownership, an Agreement to Sell involves a commitment to transfer ownership at a future date. In a sale, the buyer becomes the legal owner instantly, whereas an agreement to sell outlines conditions for the transfer, which occurs later or upon fulfillment of specified terms.

What is a sale?

In real estate transactions, a sale signifies the immediate and final transfer of ownership from seller to buyer. This transfer occurs upon the fulfillment of specific conditions, typically payment of the agreed-upon price and execution of the sale deed.

Upon completing the sale, the buyer assumes full ownership of the property, along with any associated risks and rewards.

Two main features of a sale are :

For Example, you purchase a ready-to-occupy apartment. Upon completing the payment and registering the sale deed, you become the legal owner, bearing any future risks or enjoying potential benefits like appreciation in value.

What is the nature of the Contract?

A sale is considered an executed contract, meaning all obligations have been fulfilled upon the transfer of ownership. The sale deed serves as the final document, signifying a complete and binding transaction.

What is an Agreement to Sell?

An agreement to sell, while similar in its intention to transfer ownership, differs significantly in its timing. Here, the transfer of ownership does not occur immediately but at a future date or upon the fulfillment of certain conditions. This agreement serves as a binding promise to transfer ownership, but the actual transfer remains contingent.

Two main features of an agreement to sell are:

For examples, you enter into an agreement to purchase an under-construction apartment, with completion and possession scheduled for two years later. Until then, ownership remains with the builder, and you haven't assumed any risks or rewards associated with the property.

Until the transfer of ownership takes place under an agreement to sell, the associated risk and reward remain with the seller. This means the seller bears the risk of any damage or loss to the property before the agreed-upon date or condition is met.

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What is the Nature of the Contract ?

An agreement to sell is considered an conditional contract, meaning both parties have obligations to fulfill before the deal is complete, the sale is finalized and ownership is transferred. The seller must fulfill the agreed-upon conditions, and the buyer must make the payment. The transaction remains incomplete until all conditions are met.

Difference Between Sale and Agreement to Sell

ParameterSaleAgreement to Sell
MeaningTransfer of ownership from seller to buyer in exchange for moneyTransfer of ownership from seller to buyer at a later date
NatureImmediate transfer of ownershipPromise to transfer ownership later after fulfilling certain conditions
Type of ContractSimple contractConditional contract
TitleThe title is transferred to the buyer with the executionThe title is not transferred until the agreed-upon future date
Transfer of RiskRisk is typically transferred to the buyer immediately after paymentThe risk of loss or damage remains with the seller until the agreement conditions are fulfilled
Right to SellOnce the contract is executed, the seller has no right to sell the propertyThe seller can sell the property to another party if the buyer is unable to meet the agreement conditions
TaxLiable for sale taxMay vary as per the jurisdiction, and the terms of the agreement
Consequences of damage to the goodsBuyers bear the cost of damages after the transfer of ownershipSeller may be responsible for any loss or damages, since the ownership is not transferred yet
RelationIt involves a direct transfer of ownership from seller/s to buyer/sAn agreement to sell consists of a promise to transfer ownership later
Subsequent ResponsibilitySeller’s obligations are usually completed upon transfer of ownershipLoss is borne by the seller
Statutory LawIncludes various statutes, including:

Why is knowing the difference important?

Given the potential legal and financial implications, ensuring clear and unambiguous contractual terms is crucial for both sale and agreement to sell transactions.

Key elements to cover while drawing up a contract are as follows:

Seeking legal advice from a qualified professional is highly recommended to ensure the contract accurately reflects your agreement and protects your interests.

Case Studies: Real-World Scenarios

Scenario 1: Ready-to-Occupy Apartment

You decide to purchase a ready-to-occupy apartment from a developer. You sign a sale deed and make the full payment. Upon registration of the deed, you become the legal owner of the apartment, assuming all risks and rewards associated with it.

If there are any renovations or non compliance of amenities, the buyer has to bear the expenses This is an example of a sale, with immediate ownership transfer.

Scenario 2: Under-Construction Apartment

You enter into an agreement to purchase an under-construction apartment from a builder. The agreement specifies ownership transfer upon completion of construction and obtaining occupancy certificate. Until then, the builder retains ownership of the property.

In case of conflicts such as delayed possession, title disputes, defects, legal non-compliance, the builder or the seller bears the responsibility of taking care of said conflicts before transferring ownership to the buyer. This is an example of an agreement to sell, with ownership transfer depending on future events.

Conclusion

In a city like Mumbai, where about 50% of all legal transactions conducted are illegal, understanding the fundamental differences between a sale and an agreement to sell allows you to navigate the real estate market with clarity. By carefully considering the legal and financial implications, opting for clear and well-drafted contracts, and seeking professional advice when needed, you can ensure a secure and successful transaction.

Transparency is hard to come by in a highly regulated market like real estate and peace of mind starts with educating yourself in ways to protect your high value investment. Remember, knowledge is power, especially when it comes to safeguarding your investments in the dynamic world of real estate.