- The assignment clause in a builder’s APS typically addresses: - Whether assignment is permitted at all, and under what conditions - Whether the builder’s consent is required, and on what…
- - Many agreements prohibit assignment outright unless the builder consents in writing - Some require the assignor to first offer the unit back to the builder or its in-house resale…
- Confirm whether assignment is permitted under the standard agreement, and on what terms 2.
Most pre-construction condo purchasers sign their agreement of purchase and sale (APS) with no immediate plan to sell before closing. But a lot can change over the several years it takes a project to register — and if it does, whether you can sell your rights under the agreement before then depends entirely on the assignment clause you signed.
An assignment is the sale of your contractual rights and obligations under the APS to a new buyer (the assignee), before the builder’s final closing. Most standard builder agreements restrict this right significantly unless you negotiate otherwise before signing.
This article walks through what an assignment clause typically controls, and what to look for — or ask for — before you sign.
What an Assignment Clause Actually Controls
The assignment clause in a builder’s APS typically addresses:
- Whether assignment is permitted at all, and under what conditions
- Whether the builder’s consent is required, and on what basis it can refuse
- Any fee the builder charges to process a consent request
- Restrictions on how — and whether — you can market the unit before consent is granted
- Deadlines, such as a cutoff after which assignment is no longer available as final closing approaches
- What happens to your deposits and payments once an assignment closes
Builder-drafted agreements vary widely on all of these points, and the differences matter more than most first-time pre-construction buyers expect.
Common Restrictions in Standard Builder Agreements
- Many agreements prohibit assignment outright unless the builder consents in writing
- Some require the assignor to first offer the unit back to the builder or its in-house resale program
- Marketing restrictions are common — no MLS listing, no public advertising, no signage, no disclosing price — until the builder has consented
- Some agreements set a hard deadline after which assignment is no longer available, regardless of circumstances
- Consent is often discretionary — builders aren’t always required to approve a proposed assignee
What to Ask Your Lawyer to Negotiate Before You Sign
- Confirm whether assignment is permitted under the standard agreement, and on what terms
- Ask whether the consent standard can move from fully discretionary to a "reasonableness" standard, so consent can’t be refused without cause
- Ask about the marketing restrictions specifically — they affect how quickly you could find a buyer if you needed to
- Ask whether the assignment deadline can be extended or clarified
- Ask what fee, if any, applies to a consent request, and whether it’s fixed or open-ended
Assignment Clause Red Flags
- [ ] The clause gives the builder unlimited discretion to refuse consent, with no reasonableness standard
- [ ] There’s no stated timeline for how quickly the builder must respond to a consent request
- [ ] Marketing restrictions are broad enough to make finding a buyer difficult even with consent
- [ ] The clause is silent on what happens to your deposit if an assignment falls through
Why This Matters Even If You Never Plan to Assign
Circumstances change — a job relocation, a shift in financing, a change in family plans — over the years between signing and a pre-construction building’s final closing. You don’t need to plan on assigning to benefit from having the option available on reasonable terms. Reviewing this clause before you sign, rather than discovering its limits only when you need to rely on it, is the difference between having flexibility and being stuck.
Frequently asked questions
Do I need the builder’s permission to assign my pre-construction condo agreement?
In most cases, yes. Standard builder agreements require written consent before an assignment can proceed, and many restrict or prohibit assignment altogether unless negotiated otherwise before signing.
Can I list my pre-construction unit for sale on MLS before the builder consents?
Usually not without breaching your agreement. Most builder agreements restrict marketing an assignment — including MLS listings and public advertising — until the builder has consented. Review your specific agreement’s marketing terms before listing.
Is it too late to negotiate the assignment clause after I’ve already signed?
Once you’ve signed and passed any rescission period, the assignment terms are generally fixed as written. Some buyers can negotiate an amendment later, but there’s no guarantee — which is why review before signing matters.
What’s the difference between an assignment and a normal resale?
An assignment sells your contractual rights under the original agreement before the builder’s closing; a normal resale transfers registered title to a completed, registered unit. They’re legally distinct transactions with different processes, protections, and paperwork.
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