Estate agents act for the seller, who pays the agent according to the terms of the contract between them. Questions such as fees, written contract, and sole or multiple agencies are all dealt. Generally, the seller pays the agent only after he or she introduces someone who completes the purchase of the property. Estate agents also advise the seller on the likely price which he or she can expect on the sale of their house. If you want a valuation from a surveyor, that would have to be separately arranged. Once you instruct an agent to act for you, you become responsible for supplying the estate agent with accurate information about your property. Estate agents rely on this information which the seller provides to them for making up their particulars of sale. They are not expected to establish the accuracy of the information which they receive from the seller, unless there is something which would put the agents on the alert and raise a query in their minds. Estate agents also usually print a disclaimer on the property’s particulars which they distribute. The disclaimer could absolve the agent for misrepresentation but would not protect a seller who provided misleading information in the first instance.
Your instructions will differ only in certain regards depending on whether you buy or sell. (Quite often, of course, people conclude both deals simultaneously by selling their own house and buying another.)
(1) You must ensure that all the persons with an interest in the property are parties to a contract of sale, and inform your conveyancer of any such interest.
(2) You will have to instruct your conveyancer whether you intend to pay the estate agent’s commission from the sale proceeds or in some other way.
(3) You must instruct your conveyancer to prepare a draft contract of sale once you have accepted an offer.
(4) Your conveyancer will receive the 10 per cent deposit for you after exchange of contracts.
(5) In general a seller is entitled to the deposit if a buyer fails to complete after contracts have been exchanged. There are also other legal remedies available to compensate for failure to complete in certain instances.
(6) In all cases, do try to establish, in advance, the costs involved in the conveyancing. These are generally slightly lower for selling a house than the fees involved in a house purchase.
(7) You will have to make all proper arrangements in advance to pay off your existing mortgage on the property, if any. Your conveyancer will have to obtain the title deeds from the lender in order to have them re-registered in the name of the purchaser.
(8) Although the buyer becomes liable for insuring the property once contracts have been exchanged, you are not advised to cancel your existing policy until completion has actually taken place. You should, however, inform your insurers of the current position. The Association of British Insurers issues helpful leaflets on all aspects of house insurance.
Surfing the Web
A growing number of sellers are deciding to cut out the middleman and sell their property on the Internet. There are many and varied sites, from which you can sell, buy or rent your home, including, for example, www.upmystreet.com; www.easier.co.uk; and many more. Trying to sell without using an estate agent can be full of pitfalls. As in any other area, the D1Y approach will involve extra work and possibly a degree of risk. Prospective buyers will not have been vetted by an estate agent before you see them so be sure to take a telephone number and call them to confirm appointments.
• when you arrange a viewing make sure there is someone else in the house with you
• ask whether the buyer is in a chain or has sold his/her property
• do not exaggerate or mislead when describing the property
• be realistic about the price you want
• retain a good solicitor.
Completion and moving out
Your buyer should be entitled to reasonable access to the property between exchange and completion to allow for plans to be made and measurements to be taken.
Note of warning: do not allow the buyer to have a set of keys until completion has taken place.
You must be informed by your conveyancer that the money has actually been transferred to a designated account before releasing the keys. This can take time while the money is transferred from one account to another even in these days of electronic banking. If you have already vacated your property, leave a set of keys with your estate agent, with precise instructions on how and when to hand them over. Completion can only take place on Mondays to Fridays and not on bank holidays.
Failure to complete
(1) Failure to complete the formal documentation does not necessarily invalidate the purchase. Two students jointly purchased a property when they separated the following year the man bought out the woman’s share for £1,400. The transfer of the mortgage was never formalized and the woman subsequently refused to sign a draft conveyance. When the property was repossessed and sold some years later, the woman claimed a share of the proceeds of sale. The court held that failure to complete the formalities of the buyout did not negate the deal. It would be a miscarriage of justice if, as a result of the deal, the woman became entitled to a half share. She had disposed of her interest and the sale was enforceable.
(2) If your buyer fails to complete on time, there is generally a clause in the contract of sale which entitles you to interest on the late payment.
(3) If your buyer fails to complete at all, you are entitled to keep the deposit. There are also other legal remedies which might be available to compensate you for breach of contract depending on the contract’s terms.
You have a house which has been on the market for some time. You have found a buyer who has exchanged contracts with you. On the strength of the intended completion in four weeks from the date of exchange, you have made plans to move out of the area. Now you are informed that the buyer cannot complete and your plans are in disarray. Depending on the contract, you might be able to get an order for specific performance [i.e. an order that the buyer must complete the transaction if he is in a position to complete but has simply refused to do so. However, there would be no point in such an order if the buyer has not got the funds to complete the purchase. You would have to try to sell your property at the highest possible price obtainable in a hurry. If you then had to drop your price, you might be able to sue the first buyer for damages for the difference between the price he promised you and the price you subsequently obtained. You could also obtain damages for distress and inconvenience because of the disruption to your plans, although these might be fairly nominal only.
Note: if the seller fails to complete, equally he or she becomes liable for breach of contract. The same remedies might then be available to the buyer against the seller: i.e. suing for damages and/or specific performance. The buyer would also be entitled to return of the deposit as a matter of course.
Proposed changes — extension of a seller’s obligations
the government proposes to bring in new measures to speed up the process of home buying. The proposals include a ‘seller’s pack’ which a seller will have to provide — at his or her own expense to a would-be purchaser. The pack would include such matters as a survey, searches, a valuation, and details of fixtures and fittings. The pack would be prepared before the house is first advertised for sale. Trials have been carried out in Bristol and have proved to be successful in reducing the time it takes to sell a property. A house has changed hands in four and a half weeks under the home sellers’ information pack scheme. The average time is eight weeks. The Department of the Environment, Transport and The Regions has set up a help desk to deal with inquiries about the proposed reforms: 020 7890 3044; Fax: 020 7890 3408.
This form of tenancy provides the tenant with very little protection. There is no need to give notice stating that a shorthold tenancy is being established, although the landlord must give the terms (commencement date, rent payable, etc.) in writing. However, a landlord must serve at least two months’ notice, in writing, on the tenant to leave the premises, and still has to apply to court for an order if a tenant does not leave willingly. A landlord must be granted a court order if a tenant refuses to leave after expiry of the tenancy. There is no need to prove any of the grounds above. The situation would differ, however, if you wished to bring the tenancy to an end before the end of its term and you are not prepared to wait for the expiry of the notice period.
You own two adjoining flats for rental purposes. In the one flat you have a longstanding tenant who has never caused you any difficulties. You recently installed a new tenant into the second flat on a shorthold tenancy for one year you now have received several complaints that he is disturbing his neighbours because of his racist abuse and his threats of violence against his partner; you would like to have him leave the premises forthwith. If your tenant cannot be persuaded to moderate his behavior, you can make an application to the court for possession, either on the ground of breach of covenant in his lease for causing a nuisance, or on ground above. It will depend on the view that the judge takes on the evidence before him as to whether, in the circumstances, your application should be granted.
The main elements
The tenancy may be for a fixed term, e.g. a year less one day, or it can run on from one rent period to the next; but the landlord, under normal circumstances, cannot regain his property before the first six months have expired. As a result, therefore, all tenancies in the private rented sector are now shorthold tenancies unless the landlord has served a notice on the tenant before the beginning of the tenancy that it is not intended to be a shorthold tenancy. This significant change was introduced to ease the lot of landlords. Some landlords had intended creating shorthold tenancies so that they would automatically receive back their properties (subject to notice) at the expiry of the term, but found that they had instead created assured tenancies through procedural oversight.
Continuing the tenancy — no need for new notice
if the same landlord and tenant wish to continue on the same terms with reference to the same premises, the shorthold tenancy will continue.
Certain tenancies are excluded from the provisions of the Acts, in particular, tenancies which began before 15 January 1989. Several grounds are set out in the legislation, for example those which concern ‘resident landlords’.
Other grounds include;
• holiday letting of the property
• very high or very low rental property (there are specified limits)
• property granted to students
Do note: tenancies in the public sector are also excluded.
Accelerated possession procedure
Rules are in force which deals with possession proceedings for assured and shorthold tenancies. The rules are intended to streamline possession proceedings in certain cases and enable a judge to make a possession order on written application without necessarily requiring the parties to attend in court for a hearing.
In the case of an assured tenancy
If a landlord wishes to recover possession of a dwelling house on grounds of
• landlord occupation
• former holiday occupation
• former student letting
• occupation by a minister of religion
and provided the tenant has been given proper notice, the landlord can file all the relevant information with the court together with his application for possession. The information required is stipulated in the rules and must be on a prescribed form. The landlord must also serve a copy on the tenant.
A tenant has 14 days in which to make a reply.
If there is no reply, the landlord may make a written request for a possession order.
If there is a reply the judge can
• make an order after considering the reply, or
• fix a day for a hearing.
To pay the rent
There is usually an express clause in the lease concerning payment of rent. In any event, such a clause would be implied into a lease. If a tenant fails to pay rent, the landlord is usually entitled to seek possession of the premises.
Note: we usually associate payment of rent with payment of money. However, premises can be let in exchange for services for example; you could be the tenant of a house attached to a private school in return for acting as school caretaker. Your services must be measurable in the sense that they have a financial value to establish a tenancy, though, and the terms of the agreement must be made clear, i.e. that you are not a mere licensee but a tenant. [Read more...]