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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10779
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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My partner and I are trying to buy a house that is being sold

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My partner and I are trying to buy a house that is being sold by executors. The house belonged to their parents. The father died a few years before the mother. There are 2 title deeds involved in the property- the house is on one, which is registered in the mother's name but the garage and driveway are on a separate title deed that is still registered in the father's name (no mention of the mother). We are acting for ourselves in the conveyancing, which we have done successfully several times before. We sent a number of pre-contract enquiries to the vendors' solicitors, and, because of the situation described above, we asked to see the father's death certificate and a probate certificate for the father. The replies have come back and this is what their solicitor says "I have ascertained from my clients that no Grant of Probate to the estate of xx (the father) was taken out. We are therefore unable to perfect the title to the garage until a grant has been obtained in favour of the sellers. An application will be made within the next couple of days, however it is likely to be some weeks before the grant is avialable. In the circumstances we would suggest the completion of the sale of the house proceeds now, with the contract being entered into for the sale of the garage with a long stop date of 3 months hence. In the meantime you will be granted a licence to occupy and use the garage until such time as the contract is completed. We look forward to hearing from you as to whether the proposal is satisfactory." We are very wary about doing this, as we wonder if there is a possibility of complications and risks in this situaton? Or is it a water-tight proposal? Would they expect us to pay the full amount when the house completed or would they apportion the asking price in some way? Would it be better to sell our house, move into temporary accommodation and wait for them to get the probate before exchanging and completing on both parts of the property? Thank you.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

In an ideal world, you should wait for them to obtain Probate and then go ahead and complete on both the house and garage. However, I appreciate your Buyers may not be willing to wait/I don't know how much of a hassle it would be for you to complete your Sale and then move into temporary accomodation until such time as your Sellers are ready.

If the above is practical, the only danger you face with the Sellers Solicitor's proposal is if there is an issue or delay in them obtaining Probate. Although Contracts will already have exchanged and therefore the Sellers are under a legal duty to complete three months down th eline, this will only be possible if Probate has been granted.

There is no reason why there should be a problem in them obtaining Probate, and I would not have thought the Solicitor would have made the proposal if he was not confident in obtaining Probate within the due time. However, if for whatever reason Probate is not obtained, the usual scenario would be for the parties just to wait the added time until it has been granted.

If for some very unusual reason Probate was never grnated or was taking over say 5 months, your only option, other than waiting, would be to rescind the Contract, meaning you pull out of the purchase of the garage. This would of course leave you in th eposition of already having completed the purchase of the house, and having a property without a garage and possible driveway. As I have said, it would be most unusual for this scenario to arise, but I always have to look on the bleak side!

I hope this assists and sets out the legal position.

Please let me know if you require any further clarification.

Kind Regards


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Customer: replied 2 years ago.

Dear Al,

Thank you for the helpful reply. In my original question I also asked "Would they expect us to pay the full amount when the house completed or would they apportion the asking price in some way?"

Why I asked this is because there is one total asking price for 2 titles, ie the house and then the driveway and garage. If we follow their proposal, would they draw up 2 separate contracts, in order to deal with 2 separate completion dates and then, as I asked before, how would they deal with the completion money. Would we be expected to pay the total amount upon completion of the house? I am thinking this would also have implications for the Stamp Duty... Thank you in anticipation.

Hi Kim,

Thanks for your reply and apologies for not answering you fully.

The Price between the house and the garage would have to be apportioned, as you would have to pay for the house on completion, and the garage Price as and when this completes.(You won't have to pay for the garage until that eventually completes).

The Seller's Solicitor is likely to prepare only 1 Contract, stipulating clearly the completion dates for for the house and for the garage.

You will not of course be under any duty to pay for the garage until that part of the transaction completes.

As regards ***** ***** a Buyer is under a duty to pay this from the date on which the "Contract is complied with". This would include the scenario where a Buyer moves into a property BEFORE completion date. Hence, my opinion is that Stamp Duty becomes payable on the full price (house and garage) from the date you complete on the house, as you will at that date also be occupying/taking possession of the garage. As you are no doubt aware, Stamp Duty needs to be paid within 30 days.

I hope this assists.

Kind Regards