Subject to sale clause in QLD: how it works + how buyers get burned

TLDR: A subject to sale clause makes your purchase conditional on selling your current property first. It protects you from owning two homes (or none), but in Queensland it usually comes bundled with a sunset clause that lets the seller keep marketing – and bump you if a better offer lands. Used well, it’s a sensible bridge between two transactions. Used casually, it’s how buyers lose the home they’d already mentally moved into.

What is a subject to sale clause?

It’s a special condition in your purchase contract saying the contract only proceeds if you sell (and usually settle) your existing property by a stated date. If your sale doesn’t happen in time, you can terminate and recover your deposit. It’s the standard tool for the classic Queensland dilemma: you’ve found the next house before you’ve sold the current one.

The catch: the seller usually keeps marketing

Most subject to sale conditions in QLD come with a right for the seller to continue marketing the property. If they receive another acceptable offer, they can issue you a notice – commonly 48 to 72 hours – requiring you to either waive your subject to sale condition (i.e. commit unconditionally) or terminate. If you can’t safely waive because your own sale hasn’t landed, you lose the property. That’s the trade: flexibility for you, an exit for them.

Three ways buyers get burned

• Waiving under pressure. A notice arrives, emotions take over, and the buyer waives the condition without finance or their own sale locked in. Now they must settle – potentially owning two properties on bridging finance they never priced.
• Timeline fantasy. The clause gives you 60 days to sell, but your suburb’s median days-on-market says 35 plus a 30-day settlement. The maths never worked.
• Vague drafting. “Subject to sale of the buyer’s property” without specifying which property, whether it means contract signed or settlement completed, and what happens on termination. Ambiguity in special conditions is where disputes are born – this clause should always be drafted or reviewed by your lawyer, not adapted from the last deal’s contract.

What a well drafted clause actually specifies

The difference between a clause that protects you and one that does not is detail. Before you sign, check that yours answers every one of these.

• Which property. Identified by its lot and plan number, not “the buyer’s home”. If you own two properties the ambiguity is fatal.
• Contract or settlement. Being under contract is not the same as being paid. A clause satisfied on signing a contract for your place leaves you exposed if that buyer never settles.
• The date, and what happens on it. A fixed calendar date, not “within a reasonable time”. State plainly that if the condition is not satisfied by then, either party may terminate and the deposit is refunded to you.
• The notice mechanics. How many hours you get, how notice must be given, and to whom. Forty eight hours is short if it lands on a Friday afternoon and your solicitor is not copied in.
• Whether you must accept any offer. Some clauses oblige the buyer to accept a reasonable offer on their own property. That can force you to sell below what you wanted in order to keep the purchase alive.

Is your timeline actually real?

Most subject to sale clauses fail on arithmetic rather than law. Work it backwards before you agree to a date.

Take the median days on market for your suburb and property type, add the days you still need to get to market, then add your own settlement period. A 30 day listing campaign plus a 30 day settlement is 60 days before you have a cent, and that is assuming it sells in the median. If the clause gives you 60 days, you have built in no margin at all for a buyer who needs finance, a valuation that comes in short, or a building and pest report that reopens the price.

If the honest number is longer than the seller will wear, that is useful information. It means a subject to sale clause is the wrong instrument, not that you need a braver date.

What happens if your sale falls over

If the condition is properly drafted and your sale does not happen by the date, you terminate and your deposit comes back. That is the whole point of the clause and it is the outcome it is designed to deliver.

Where it goes wrong is in the middle. If you have already waived the condition under a notice, the protection is gone and you are bound to settle whether your own sale completes or not. If you have not waived but the date has passed without either side terminating, the position gets murky, and murky is expensive. Neither of those is a place to work out what your contract says for the first time.

The practical rule: the day a notice arrives, that is a call to your solicitor, not a decision to make on the drive home.

Alternatives worth pricing before you use one

Depending on your equity and risk appetite: bridging finance, a longer settlement negotiated on the purchase, selling first and renting back short term, or a deposit bond. Each has a cost; so does losing the house. We walk buyers through the options as part of our conveyancing service – before anything gets signed, which is the only time the advice is worth much. See also our guides on the cooling off period in QLD and sunset clauses.

Frequently asked questions

What does subject to sale mean in QLD?

Your purchase contract is conditional on the sale of your existing property by a set date. If it doesn’t sell in time, you can terminate and get your deposit back.

Can the seller still sell to someone else?

Usually yes – most QLD subject to sale conditions let the seller keep marketing and force your hand with a short notice (typically 48-72 hours) if a better offer arrives.

Does subject to sale mean contract or settlement of my property?

It should say – explicitly. A well-drafted clause specifies whether an unconditional contract on your property is enough or whether settlement must complete. Never leave it ambiguous.

Will sellers accept a subject to sale offer?

In a hot market, rarely – clean offers win. In a balanced or slow market, they’re common, especially if your property is already listed and priced realistically.

Should a lawyer draft the clause?

Yes. It’s a special condition with termination consequences on both sides. Template wording from a previous deal is how buyers end up in disputes – have it drafted for your actual circumstances.