- COVID-19 and the conveyancing process: advice for homebuyer and sellers
COVID-19 and the conveyancing process: advice for homebuyer and sellers
COVID-19 and the conveyancing process: advice for homebuyer and sellers18th March 2020 - Published by Duncan McGregor
Given the fast moving situation surrounding the impact of COVID-19 across the UK and the rest of the world, we are being asked questions by our clients about the potential impact of the pandemic on residential conveyancing transactions. Here, partner Duncan McGregor looks at issues arising for clients buying or selling the properties into or out of which they plan to move.
To speak to an expert residential property advisor about an existing or future move, please contact Duncan McGregor on 0161 838 7874 or email firstname.lastname@example.org.
In general terms, delays may be encountered in parts of the conveyancing process with respect to, for example, search results and valuations. However, the greater risks may be around the exchange and completion process itself.
Ordinarily, the preference is to exchange contracts on a date prior to legal completion. Exchange of contracts creates a legally binding relationship between seller and buyer and will usually fix a completion date. The parties can then make their moving arrangements and so on with a level of certainty that things will happen on the day that they are supposed to. However COVID-19,has raised a number of issues that will need to be considered, including but not limited to:
- What if the sellers refused to vacate due to self-isolation?
- What if there was a failure of or disruption to parts of the banking system?
- What if there was a reluctance on the part of removal company employees to enter properties?
- What if the parties encountered difficulties in obtaining witnesses?
The general position is that in the event of a breach of contract, i.e. completion does not take place on the contractual completion date, then the defaulting party is liable to the non-defaulting party, even if the reason for the default is due to circumstances beyond the defaulting party’s control.
One answer might be to try and include some form of clause in the contract. The issue with this is that, due to such a wide range of potential scenarios, it would be unrealistic to come up with a clause that would deal with all scenarios. The Law Society published an advice note on 13th March making this point.
It might be possible for parties to adopt what could be termed a “good faith” approach, whereby they agreed that default arising from a COVID-19 related cause means that completion could be delayed until the underlying issue is resolved. However, this introduces uncertainty into the contract and could be extremely unsettling if there is a chain of transactions all waiting to happen.
In our view, in most circumstances, we would recommend that our clients should consider exchanging and completing on the same day without any special contractual clauses. Ensuring that all monies and people are where they are supposed to be immediately prior to completion removes the possibility of default and further arguments over the interpretation of any COVID-19 specific contractual clauses, and ensures that transactions will complete where all parties are ready to do so on the day of completion itself.
Each transaction is different and the best advice we can give is to discuss your situation and circumstances with our team of award winning experts to guide you through these difficult times.
Please call Duncan McGregor on 0161 838 7874 or email email@example.com.