Conveyancing Nightmares: No Survey More Fool You
- AuthorPaul Hajek
So you’ve stumbled upon the home of your dreams.
Your pulse starts to race, perhaps the odd palpitation or two, palms sweat with anticipation.
You just can’t wait to instruct your Conveyancers to move with the speed of light and exchange contracts to secure the property
But what about a survey?
Should you bother, after all, what would a survey reveal that could possibly puncture the dream?
Well, if you are lucky, nothing major, but, in the extreme, as has been reported recently, it could cost you hundreds of thousands of pounds.
Let the Buyer Beware
There is a long-held principle in English property law of caveat emptor or “buyer beware”.
Buyers must accept the property in the physical condition at the date contracts are exchanged. Exchange of contract is the time when signed legal agreements between a Buyer and Seller come into force.
It is for the buyer to discover any defects by due diligence in the form of a Survey. If there are issues revealed the Buyer may pull out of the purchase without penalty. Alternatively, an amendment in the asking price could be negotiated.
There are penalties payable where one party refuses to complete the sale or purchase after contracts have been exchanged.
If a Buyer fails to complete the Seller is entitled to forfeit the Deposit paid by the Buyer and seek further damages (i.e. compensation) for loss.
Laughton Manor – No Laughing Matter
Occasionally a case reaches the Courts where the old principles are re-examined. The sale of Laughton Manor is one such case which was litigated in the Courts. The High Court two years ago decided to uphold the Caveat Emptor rule and this has now been reinforced by the Court of Appeal.
The facts were that the Buyers ( one of whom happened to be a QC) cancelled their purchase of Laughton Manor after discovering damp, rot and timber decay in the £3.6million home.
The problem was that they did this after exchange of contracts had taken place rather than before contracts had been exchanged
The Court ruled that the Buyers compensate the Sellers to the tune of £385,000-£235,000 damages for breach of contract, in addition to the £150,000 deposit which was forfeited.
The sellers had an 'unconditional right' to cancel the contract when the Buyers failed to pay the balance of the deposit or complete on time.
Lord Justice Richards said: 'Many people buy properties with penetrating damp, which they deal with at no great expense. They would be surprised to hear it described as a structural defect'.
The Appeal Judge concluded that he did not consider that any of the grounds of appeal advanced has a real prospect of success.
What does this mean for you?
You have the right to forfeit the deposit and sell the property to a new buyer. You may also be granted damages by the Court where the Buyer fails to win their case. Don’t be bullied and fight your corner.
Is it really worth the risk?
The Conveyancing nightmare that resulted above should display a salutary lesson to buyers who do not complete a purchase on time and fail to fully investigate the physical condition of the property.
Take our advice and instruct your Surveyor well before you think of committing yourself to buy a property of whatever size or price.
So, you see, there really is no need to be a fool to yourself.