What happens if you change your mind after exchange of contracts?
Whilst it’s rare for seller to fail to complete a contract for the sale of a house, it is more common for buyers to not complete. But what happens if you don’t complete after exchange of contracts? Let’s take a look…
What happens if you don’t complete after exchange in 20 seconds…
The exchange of contracts on the sale or purchase of any property in the UK means that you’re entering into a legally binding contract. But if you don’t complete after you exchange contracts, which means that you’ve failed to complete the purchase of your new home on the agreed completion date, you could end up in a whole heap of trouble and additional costs. Most contracts for purchasing a house in the UK have standard conditions included in the contract. Within the standard contract it usually includes a clause whereby if the buyer fails to complete, after having served a notice to complete, the seller may rescind the contract. Where the the seller invokes this clause, the buyer may forfeit their deposit together with any accrued interest, which will be paid to the seller.
What happens if the seller fails to complete on the completion date?
It’s very rare for a seller to exchange contracts and then deliberately fail to complete a sale. This is because most cases sellers want to sell. But what happens if a seller pulls out after exchange of contracts. Whilst rare, this does happen as sellers can and do sometimes change their mind. The type of thing that may happen is the seller is offered a significantly higher offer for the house. Or their could simply be a change in their personal circumstances, which means they no longer wish to sell.
Options if the seller fails to complete on the completion date:
- Walk away and take back the deposit: This option is very simple and avoids spending money on solicitors costs. Plus it avoids any unnecessary stress and anxiety going through the slow UK court system. But of course before you walk away, speak with your solicitor and take advice.
- Pursue the seller for loss and damages: In any event you should be entitle to your loss of costs. Which would include solicitors fees, valuation fees etc. You would have to go to court to claim these from the buyer. But of course there’s no guarantee you’ll get these costs. Plus be aware that if you pay out for additional solicitors fees to go to court, these additional fees may well be lost. Be careful to not throw good money after bad. Always take legal advice when it comes to these types of situation.
- Serve a notice to complete: Most standard contracts include a clause to provide for a notice to complete where one party has failed to complete the contract. The effect of this notice is that it requires the other party to complete the transaction, which his usually within ten working days.
- Register a unilateral notice at the Land Registry: In addition to serving the notice to complete, the buyer should ask their solicitor to register a unilateral notice at the Land Registry. This notice gives notice to any potential alternative purchaser of the existence of you as the purchaser. It marks the property as someone else as having an interest in the property. This notice will stop the transfer of the property to another purchaser from being registered at the land registry. The only way for this notice can be removed is if the buyer consents to its removal.
More Reading: What can go wrong between exchange and completion?
What happens if notice to complete is served by the buyer?
It is always good to try and encourage the seller to play ball first, before involving an extra legal costs and fees. But if the seller is still unwilling to complete the contract voluntarily, the buyer’s solicitor can apply to court for specific performance of the notice. This can be done on the expiry of the period of the notice to complete, which is usually 10 days.
An award for remedy in this situation is at the discretion or the court. This is because it is an equitable remedy and is not available as of right. The court has the power to decide whether or not damages are a more appropriate remedy rather than specific performance of the contract; i.e. forcing the seller to sell the house to you.
The court would consider the following circumstances when making their decision:
- The seller is unable to give ‘good title‘ to the property.
- Would the award would cause exceptional hardship to the seller, but the threshold for hardship is high and is not necessarily awarded
- It is discovered that was fraud or other illegality involved in the transaction.
- There has been a genuine mistake.
- One of the parties lacks capacity making it difficult of impossible to enforce the contract.
- Where it is discovered that a third party has an interest in the property.
- Where there has been undue delay, which doesn’t have to be the fault of either party specifically.
- Or where the court deems that damages would be an adequate remedy in the circumstances.
But outside of the above remedies, and because a contract for the sale of an interest in land is generally enforceable in the UK, the award of damages are not usually adequate for a buyer. But be aware that just because you win in court and the judge awards in your favour, this isn’t the end of the matter. You still need to remove the seller out of the house. If the seller refuses to leave the property, you can obtain an order for their removal. This order should contain a penal notice (i.e. the seller would be held in contempt of court. They could be imprisoned or fined if they fail to comply).
More Reading: What can go wrong between exchange and completion?
What happens if a buyer pulls out after exchange of contracts in the UK?
In most cases where there’s been a failure by one party or another to complete on a contract for the sale or purchase of a property in the UK, this normally arises due to the buyer’s default rather than on account of the seller. Often times this is because the buyer has been unable to obtain suitable mortgage funding for the purchase. Or it can happen where the mortgage company has withdraw their mortgage offer between exchange and completion. Another reason why a buyer may pull out from a purchase is if they feel they property has gone down in value. Neither reason is a valid one to renege on the contract, as the contract is binding and enforceable.
A buyer needs to be aware that they will likely lose their deposit if they don’t complete after exchange of contracts. But what are the remedies for the seller if a buyer doesn’t complete after exchange of contracts?
Remedies for the seller if a buyer pulls out after a failed completion:
- The seller could keep the deposit and re-sell the house: This is my preferred option if this were to happen to me. You are already ahead of the game, as you have 10% of the asking price in the bank, then you sell the house again for full asking price. The only time when this isn’t a benefit is when the value of your house has fallen more than the amount of the deposit held. But in a static property market or in an upward trending market, you won’t suffer any loss. But instead you’ll have gained. This option avoids unnecessary legal costs and stress of going through the very slow UK courts system.
- The seller is entitled to damages in addition to the deposit: In a stable market or an upward trending property market it’s unlikely there would be an award for damages. In a case involving Hooper v Oates, the seller was awarded damages of £110,000. This was as a result of the buyer failing to complete on a purchase at the time for £605,000, which was later only worth £495,000. The seller was awarded £49,500, which is the award less the original deposit of £60,500.
What happens if completion is delayed?
If instead of a failed completion there is a delay in completion, what happens then? Any delay beyond the agreed completion date is a breach of contract. When a delay happens, the amount of compensation to the ‘damaged’ party(ies) can depend on the length of the delay, but the contract will include clauses to deal with the remedy in this case. This could include liability for interest which will usually accrue on a daily basis. The rate of interest is calculated in accordance to the terms of the contract.
As noted above, and in order to protect the seller’s interests, a notice to complete should be served. As explained above, this notice provides for an extra 10 working days to allow completion to be effected. But this time limit is not negotiable, as it will be included as a term within the contract. Buyers should be aware that should completion not be effected within the 10-day notice period, the seller has the right to rescind the contract. The seller will be entitled to keep the 10% deposit and sell the property elsewhere.
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