The Legal Process For England & Wales

Buying or selling your home has been likened to death or divorce: It can be a stressful experience. But a problem shared is a problem halved and we are here to help you through the process. We can advise and assist in many ways but perhaps the most important is our ability to liaise with all the solicitors to ensure as little hassle as possible:

• If you are selling, we will undertake the marketing and use our best endeavours to suit your requirements by introducing a suitable buyer at the best possible price;

• If you are buying, we can offer you our wide range of properties on which we are instructed and guide you through the purchase procedures generally.

In either case, your solicitor or licensed conveyancer will ensure that all the legal requirements are met and you are selling, or purchasing, in accordance with your instructions.

The legal process may seem a minefield but the sale or purchase of land is fundamentally different from buying or selling anything else. If you agree upon a price to buy or sell a motor vehicle, but then change your mind, you could be sued for breach of a verbal contract. This does not apply to land as there are many more obligations involved which need to be checked through and understood.

For over three hundred years, since the Statute of Frauds 1677, the law has required the sale or purchase of land to be set out in writing, signed and containing all the important terms. It used to be commonplace for any offer made, and any acceptance of that offer, which was in writing, to be endorsed with the magic words ‘subject to contract’ – this was to avoid either party being legally bound inadvertently. If those words were not used, then an exchange of letters could be sufficient to bind both parties.

You may find the term ‘subject to contract’ still in use but it is no longer so critical since modern legislation requires sales of land to be recorded in a specific format, called a Deed, which cannot be created unintentionally. That said, the expression remains in use as a convenient shorthand note to indicate that an offer is still provisional and not a firm commitment so the term may still appear in the correspondence.

At this stage there may still be minor negotiations to be concluded. For example, does the sale agreement include, or exclude, furnishings and fittings? By this is meant any of the moveable items which could be taken from the property without damage to the structure - ‘chattels’ in legal terminology. Misunderstandings can arise and should be dealt with at the outset. Carpets and curtains are the most common chattels. They can be excluded, or included, in the price.

As can other items. It should be remembered that the legal definition of ‘chattels’ is ‘personal property’. Often, a description of the property will include (or exclude) ‘fixtures and fittings’. This can be a trap for the unwary buyer or seller. As stated, in law, a ‘fixture’ is something secured to the property which cannot be removed without damage to the structure. For example, a hob which is part of a fitted kitchen. As such, it is part of the property and the seller has no right to remove it without notice. Unless the contract expressly makes reference to this item being excluded from the sale, it should remain. As it is fastened to the property it is, in law, an immovable. The same applies to plants and shrubs in the garden, although light fittings may generally be removed if this does not significantly damage the ceiling.

To avoid delay, expense and uncertainty, we always recommend spelling out exactly what is being taken and what will be left. With most properties being liable for Stamp Duty based on the contract price there may be more attention paid to the value of the ‘fixtures and fittings’ to avoid falling into a higher duty band.

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