Once you have exchanged contracts, you are contractually bound to complete on your sale/purchase on the agreed completion date. If you are unable to complete on time, whatever the reason, including Coronavirus, you will be in breach of contract. The implications of this can range from payment of interest for a late completion, or potentially the loss of the 10% deposit (for buyers), and other reasonable costs which might flow from the breach of contract. It is not a viable option to insert clauses into sale/purchase contracts to cover the Coronavirus.
Although Government has yet to give any clear guidance, it appears that they are reluctant to interfere with basic contract law and therefore any client – selling and/or buying – who has exchanged contracts must proceed “as normal” on the basis that all parties to the contract are legally obliged to fulfil their obligations and move on the completion date agreed.
Where exchange of contracts has not taken place, the advice appears to be that the potential risks are to be weighed in each case. These could be e.g. a seller has to self-isolate or is diagnosed with Covid-19 and cannot move; a removal company refuses to attend to removals (on Tuesday 24th March, the British Association of Removers set out guidance to their 400-strong membership that they should effectively cancel any removals not currently in process) etc. However, it will be the client’s decision whether to accept those risks and proceed.
Any suggestion that clauses can be drafted into contracts to accommodate the potential risks presented by the pandemic have been dismissed by the legal regulators as unworkable (and would add considerably to the client’s costs).
Simultaneous exchange and completion is a potential solution, but is unlikely to suit any chain of transactions – the completion date not being legally binding until the “last minute” does leave all parties at risk of cancellation and other costs if one party is unable to proceed on the day
Today, Wednesday 25th March, a Government spokesperson sought to clarify by stating that "Home buyers … should, as far as possible, delay moving to a new house while emergency measures are in place to fight coronavirus.
If moving is unavoidable for contractual reasons and the parties are unable to reach an agreement to delay, people must follow advice on social distancing to minimise the spread of the virus.
Anyone with symptoms, self-isolating or shielding from the virus, should follow medical advice and not move house for the time being.”
So it appears that Government will not provide or support a “get out” option if contracts are already exchanged, but advise against exchanging and committing to buy (or sell) until more certainty can be assured.
Buying or selling a vacant property does appear to be at minimal risk, as completion does not rely on any party physically moving. There are other instances where clients may decide the risk is worth taking and we will be here to continue to provide our services and assist all clients in achieving their goals.
We are hopeful that solicitors/conveyancers, banks, lenders and removal companies will work together and take a pragmatic approach to ensure that transactions complete as quickly as possible. However, we must be alive to the possibility that we could reach a time where there are delays, for example in lenders releasing mortgage funds, other parties’ solicitors not being fully operational or removal companies being short staffed or having access issues. With co-operation, there are ways in which these issues can be resolved. However, we would encourage you to check with all of those involved in your conveyancing transaction prior to exchange of contracts, consider the length of time that you need between exchange and completion, and think about arrangements you could make should you or a member of your family need to self-isolate during the moving period.
We wanted to highlight this to you, and reassure you that we have given consideration to the current situation, have plans in place and will continue to monitor developments.
To enable social distancing in order to keep our clients and team safe, entry to our office is now strictly by appointment only. Please contact us on 01434 602531 to make an appointment. If you are experiencing flu-like symptoms YOU MUST NOT come into the office. Instead, contact your dedicated conveyancer so that we can look into your individual situation and contact you to discuss the options further.