. . . Moving Home - The Legal Process For England
& Wales Continued
To avoid delay, expense and uncertainty, it is far better to
spell out what exactly can be taken and what cannot. With the increase in Stamp
Duty, especially at the stepped rates, it is now common for the asking price to
exclude “fixtures and fittings” to avoid falling into the higher
duty band. A separate contract and price is then concluded for these excluded
items, additional to the purchase price of the property. Just be certain, at
the very beginning, as to what is, and what is not, included.
When all is agreed in principle, the seller‘s solicitor
will prepare a draft contract to send to the purchaser‘s solicitor for
approval or suggested amendments. This is because only the seller knows what
title he can give; whether freehold or leasehold and including any documents or
events, such as the death of the original owner and probate of the will vesting
ownership in the seller plus any encumbrances (easements) against the title,
such as rights of way. The best evidence of title is, of course, the title
deeds or lease and these may be handed to your conveyancer or, if the property
is mortgaged, obtained from the lending source. The last statement from your
mortgage provider will be a great help. If the title is registered, your
conveyancer will need to know the title number so s/he can obtain all the
necessary information from the Land Registry.
At this stage, when the sale or purchase is still going through
the initial preparatory procedure, either side may withdraw without liability
and can do so right up until contracts are exchanged. Often, with rising prices
and the inherent delay built in to the system, “gazumping” may
occur. This happens when the seller accepts a higher offer than the one already
agreed. Note that the seller has previously agreed a sale verbally and then
reneges on that agreement enticed by the higher amount. The word
“gazump” derives from the Yiddish word “to cheat”. It
does not mean that the seller is unable to cast around for the best bid; it
only occurs when he has already agreed to sell at a definite price, but
“subject to contract”. There is little that can be effectively done
to stop the practice, as the seller is legally entitled to proceed with the
best offer. The purchaser can, when the offer is accepted, ask the seller to
agree, in writing, to treat with him alone for a specific period, to allow the
purchaser to conclude his enquiries and exchange contracts. But the seller will
rarely agree to disadvantage himself, especially when the purchaser may still
pull out with no liability whatsoever.
After receiving the draft contract from the
“sellers” solicitor, the “purchasers” conveyancer will
send a long list of printed preliminary enquiries in return covering virtually
everything that needs to be known about the property, including insurance,
guarantees, disputes, any unusual charges and, if not already agreed, whether
the seller intends to remove those fixtures, fittings, plants, aerial, burglar
alarm, telephone, etc. He will also send off an official search, with a printed
list of further enquiries, to the local authority to see, for example, if the
property is subject to any local land charge or any adverse entries; how
drainage is connected, what building or other development has been granted,
proposed roads, compulsory purchase or mining activities past, present or
future.
