A Seller’s Guide to Subject Clauses in Real Estate Contracts
When selling real estate in North or West Vancouver, subject clauses aren’t just for buyers. While buyer subjects are more common — typically providing time for due diligence — sellers can also include subject clauses to protect their own interests and manage uncertainty, particularly in estate sales, complex transactions, or where timing is sensitive.
Importantly, unless a seller includes their own subject clause, they are contractually bound once they accept an offer — with no built-in opportunity to cancel. By contrast, B.C. buyers have a statutory right to rescind most residential resale contracts within three business days under the Home Buyer Rescission Period (HBRP). This makes it essential for sellers to be fully comfortable with the terms of the agreement before accepting an offer that contains no seller conditions.
Disclaimer: The information in this guide is for general informational purposes only and does not constitute legal, financial, or other professional advice. Sellers should consult with qualified professionals for advice tailored to their specific situation.
Below, we cover common subject clauses sellers may need or wish to include in an offer.
Subject to Probate (Estate Sales)
If the property is being sold by an estate, the seller (often an executor) may include a “subject to probate” clause. This protects the estate by making the sale conditional on receiving a grant of probate from the court. If the grant of probate has already been provided before the home is listed for sale, generally the estate condition is not needed.
Why it matters:
Without probate, the seller has no legal authority to transfer title. Including this clause avoids breach of contract if the grant of probate is delayed or denied.
Subject to Release from a Prior Accepted Offer (Backup Offers)
If a home owner is considering accepting a backup offer, a seller’s subject clause can clarify that the new contract is only binding if the first offer collapses.
Why it matters:
This allows the seller to line up a secondary offer without prematurely committing to two buyers.
Subject to the Seller Securing a Suitable Purchase
In some cases, a seller may need to find and secure a new home before they can proceed with the sale of their current one. This clause makes the sale conditional upon the seller successfully purchasing another property.
Why it matters:
This protects sellers from being left without a place to go — especially important in competitive or tight inventory markets.
Note:
This clause can weaken your negotiating position, so it’s typically best used in slower markets or when you’re working with a highly motivated buyer.
Subject to Legal Advice
This clause allows the seller to have the contract reviewed by a lawyer within a specified timeframe before it becomes legally binding. It’s especially useful when the terms are complex, when the seller is dealing with unique circumstances (such as co-ownership, an estate sale, separation/divorce, or pending legal matters), or simply when they want to ensure all legal obligations are understood before proceeding.
Why it matters:
Legal advice subjects give sellers breathing room to obtain professional guidance without the pressure of being locked into a deal. A lawyer can help clarify the implications of specific terms, identify hidden risks, and flag any language that may leave the seller exposed after closing.
However, it’s important to recognize that including a legal review clause may weaken an offer from the buyer’s perspective. In a fast-moving or competitive market, buyers may see this clause as a hurdle or delay, and could be hesitant to accept an offer with added conditions. That’s why it’s a good idea to use this clause thoughtfully — and only when truly necessary.
Pro tip:
If you anticipate needing legal advice, it’s wise to consult a lawyer before listing your home or early in the selling process. That way, you’re already prepared when an offer comes in and may not need to include a legal review subject at all.
Structuring Seller Subject Clauses
Like buyer subjects, seller clauses must be clear, specific, and time-limited. Typically, the seller will include a deadline (e.g., 5–10 business days) by which the subject must be removed. If the condition is not satisfied by that date, the contract becomes void unless extended in writing.
However, not all seller subjects can follow short timelines. In some cases, the subject may depend on outside factors beyond the seller’s control. For example:
- Probate: If the property is part of an estate, the subject may be “subject to obtaining probate,” which can take several weeks or even months, depending on when the process was initiated and the complexity of the estate.
- Backup Offers: A subject tied to a previously accepted offer (e.g., “subject to the seller ceasing to be obligated to an existing contract”) will depend entirely on when — or if — the first deal collapses.
In such cases, buyers and sellers must agree to an appropriate timeframe, and both parties should understand the uncertainty and potential delay associated with the condition.
Final Thoughts
Seller subject clauses are less common than buyer clauses, but they can be just as important — especially in estate sales, backup offer scenarios, or when the seller is navigating a simultaneous purchase. Each clause must be carefully drafted to ensure it's enforceable and reflects your unique situation.
Working with an experienced real estate professional is key. Our team can guide you on whether a seller's subject is appropriate, how to word it effectively, and how it may impact your negotiations or marketability. If you're selling under special circumstances, we're here to ensure your interests are protected — every step of the way.