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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10459
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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I am buying a property and the exchange of contract should

Resolved Question:

I am buying a property and the exchange of contract should take place in the next 10 days. However, the property is not available for me to occupy until 2014. The owner (who is in her 80's) is not prepared to move out until her new build annex is ready in March 2014.
The sale of my property has already completed so cash is readily available and I am keen to proceed as quickly as possible.

My options are;
1. exchange contract now, and agree to complete in March 2014
2. exchange and complete now, allowing the owner to continue staying in the property free of charge until March 2014

My questions are;
1. which option would you recommend?
2. what are the draw backs of each option?
3. how do I protect my interest and my future property?
4. are there any other options I have not considered, and what are their consequences and outcome?
Submitted: 3 years ago.
Category: Law
Expert:  Aston Lawyer replied 3 years ago.

 

Hi there,

 

Thanks for your enquiry.

 

So that I can answer you fully, could you please confirm if you are having a Mortgage to assist in your Purchase?

 

I look forward to hearing from you.

 

Kind Regards

AL

Customer: replied 3 years ago.

Hi


I have not got a mortgage and will be paying cash.


Thanks

Expert:  Aston Lawyer replied 3 years ago.

 

Thanks for your reply.

 

You do have only 2 options-

 

1. It would be normal and favourable for you to exchange Contracts now, and stipulate in the Contract with Completion to take place on 7 or 14 days notice from the Seller's Solicitor that the Seller's new build is ready for completion.

This way, you will get a commitment from the Seller, by way of an exchange, and you will get the keys as and when the Seller's new build is ready.

Concerning the new build, the Developer's Solicitor will give your Seller's Solicitor 7 or 14 days Notice that the property is ready for occupation, and hence once the Seller's Solicitor has received this confirmation he will notify your Solicitor accordingly.

The only downside with this is there is no guarantee completion will indeed take place in March 2014- there may be delays with the new build, and if you agree to this 7 days notice/completion date, there won't be anything you can do to push the completion date if for example the new build ends up only being ready in May 2014. However, it appears that your Seller can't complete his Sale to you until his new build is ready and you won't be any worse off than if you go for option 2 below.

 

2. You exchange now and agree a fixed date for completion in December/Jan and allow the Seller to remain living in the property until his new build is ready.

This option wouldn't be possible if you were having a Mortgage, but note you are paying cash.

You get commitment from the Seller as you will have exchanged Contracts, but you don't get occupation until your Seller's new build is ready.

There really is no sense in you agreeing to this option, as you get no more protection than option 1 and there are a couple of possible disadvantages. Although your Solicitor can draw up a simple Licence agreement, granting the Seller to remain in occupation until his new build is ready (although he is likely to charge a bit for this extra work), there are the following disadvantages-

 

1. You will have provided the Seller with the Purchase monies and you have no benefit to show for it.

2. Unlikely, but what if you complete, and the Seller hasn't exchanged on his Purchase, and then he decides not to go ahead with the new build purchase. Although you have a legal document in place stipulating he has only a Licence to remain in the property, evicting an occupier would entail Court proceedings .

 

Hence, I certainly would advise that you go for option 1.

 

Unless your Seller is prepared to vacate his property before his new build is ready, these are the only 2 options open to you.

 

I hope this assists, but please let me know if you require any further clarification.

 

Kind Regards

AL

 

Customer: replied 3 years ago.

Thanks for your reply.


 


A completion date will be agreed by both parties on exchange of contract.


 


If I go to option 1 - what would happen if the seller dies before completion (and vice versa)?


 


With this in mind, is option 1 still the best option?



Also, who's responsibility is it to care for the property and pay for any maintenance between exchange and completion?


 


Thanks

Expert:  Aston Lawyer replied 3 years ago.

 

Hi,

 

If you went for option 1, and anything unfortunate were to happen to the Seller between exchange and completion, as you had exchanged Contracts, there is a binding agreement in place, and on the basis that the Contract would say that completion will take place on 7/14 days Notice that the new Build was ready, completion would still be able to take place, and you would get the keys on the due date. However, the Land Registry transfer would have to be signed by the Sellers next of kin and they would have to obtain Probate, a copy of which would have to be produced to your Solicitor, as he would need this to register the Transfer at the Land Registry.

 

I certainly hope that this situation would never arise, but if it did, this would be the only reason why option 2 would be the better course of action for you!

 

As regards XXXXX XXXXX of the property, a Buyer is responsible for insuring the Purchase property from the date of exchange of Contracts, and if the house burns down between exchange and completion you are still legally bound to complete. The burning down of the property is therefore a danger whichever option you took.

 

If the Seller were to cause damage to the property between exchange and completion, you would have to make an Insurance claim, although you would also be entitled to sue the Seller for any reckless acts carried out by him between exchange and completion and which had caused damage.

 

I hope this helps.

 

Kind Regards

AL

 

 

 

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