Residential Property
Frequently Asked Questions
Do you do a free first interviews?
No, but this should not be necessary as full instructions can usually be taken over the telephone or via the Internet. However, if you have a particular query or problem that can only be dealt with face to face, we will do our best to help.
How much do you charge?
We provide a tailored personal service. Therefore, each quote will reflect your individual needs. Please click here (link to Buyers / Sellers Questionnaire) if you would like us to give you a full quote. Or, feel free to give us a call.
It is worth noting that if you are either buying or selling and the process does not get as far as the exchange of contract, then we do charge for ‘abortive work’ on a work done basis.
If unforeseen complications arise which cannot be covered in the estimate we will alert you as soon as possible and discuss any extra charges with you at the agreed time.
I have found a property I want to buy. Do I need a survey and why?
Yes, you should have a survey because when you buy property in this country the basic rule is still ‘Buyer Beware’, i.e. it is your responsibility to satisfy yourself as to
- the physical boundaries of the property
- the condition of the property – is it in the condition you expect?
If you are obtaining Mortgage Finance, then it will be an implied condition of the mortgage that you keep the property in good repair. Legally, this is interpreted as putting it into good repair if it is not already.
What can I do if I lose my Buyer or my Seller?
If this happens before you have exchange of contracts, then very little as matters will be Subject to Contract.
If you are very worried about this
you could suggest a Presale Agreement to you Conveyancer
you could take out insurance which is available at a small premium – ask us
What happens if I have an adverse survey report?
You need to decide whether you are still interested in the property or not
If you are still interested you need to find out how much it will cost to rectify any remediable defects
You may then try to renegotiate the price – the outcome of this will depend on:
Whether you or the Seller were aware of the possible defects when the price was originally negotiated
Whether it is a Buyer’s or Seller’s Market
the Seller position, e.g. is he is keen to sell, does he need to sell for other reasons, or he may be happy not to sell but just be trying the market
Can I drop out if I get an adverse survey before Exchange of Contracts?
Yes but you will have to pay the cost of it and any other costs you have incurred
However you may decide this is a better option than continuing to proceed, even with a price reduction
If the survey only brings to light minor matters, you may try to renegotiate the price
What happens if my Buyer/Seller drops out?
Matters are at an end
As matters are still Subject to Contract neither party is liable to the other for any abortive costs so:
Each party pays their own costs
How long will it all take?
The whole process should take approximately 6 – 8 weeks to process
This starts from the date of instructing us
If you are in a chain then there may be delays beyond your or our control elsewhere in the chain
If there is no chain at all, or your sale and purchase form the only 2 links in the chain, then matters can take a much shorter time
If you are selling, then the sooner you instruct your Conveyancer to start preparing the documents, the better, e.g. getting the Deeds form your Lender, setting up the other paperwork, preparing the Contract
When can I move in?
On Completion on the Completion Date
If you are in a chain, the whole chain will need to agree the same date, so it is better to leave this discussion until all the chain is ready to Exchange Contracts
The actual time on the Completion Date depends on when we send the money to the Seller’s Conveyancers. If you are at the top end of a chain, this can be late in the day
However, if all the parties have established a harmonious chain, then sometimes everyone just moves out in the morning and in in the afternoon – this is risky and can cause real problems if there is a delay with the money transfers
When/where do I collect keys?
If your Seller moves out before the Completion Date he/she/they can leave the keys with the estate agent or Conveyancer
Alternatively if your Seller is also moving out on the Completion Date you can arrange to collect them direct from the Seller as they move out
As the keys should not be handed until Completion has actually taken place, see When can I move in? for the timing of the handover of the keys
Can I have access to the property between exchange and completion for works?
This is sometimes possible where the property you are buying is empty
If you would like to do this you should ask your Conveyancer to raise it with your Seller before exchange of contracts
The Seller will usually require you to sign an undertaking specifying the work you want to do and making you responsible for the insurance of the property together with any damage you may do to it
You may be required also to give the keys back to the Seller or estate agent at the end of each day.
When do I pay you and how?
You will receive a bill from us just before completion
On a sale (or a sale and purchase where there will be moneys left over) we will normally deduct our costs from the proceeds before sending you the balance
On a purchase (or a ‘sale and purchase’ where we will need moneys form you to complete) we will require all the moneys, including our costs, to be with us in cleared funds before we will complete on your behalf
Why do I need a Solicitor?
If you have got or are getting a Mortgage from a Lender then they will only deal with a Conveyancer
We know the system and can help you through it
We can calm your anxieties
We can act as a buffer between parties if there are disagreements
We are economical – when some people did their own conveyancing in the mid 1980’s and costed their time afterwards, they found that it would have been cheaper to have employed solicitors anyway! Very few do it for themselves now
How can I help things along?
Keep us informed of changes in your circumstances as far in advance as possible, e.g. holidays, changes of address.
Buying Your New Home
Initial Steps
Before you visit the Estate Agent you will have decided what kind of home you want, its size, position, type and most importantly the price range.
If you want a new property ask the Estate Agents about new developments. If they are unable to show you any properties that interest you, you should ask to be put on a mailing list.
Eventually you will find a house you want to buy. You will make an offer which is accepted. The house will then be sold subject to contract. This means that the house is reserved for you pending the formal exchange of contracts. However, up to the point at which contracts are exchanged both yourself and the Seller may for any reason at all decide not to proceed with the transaction and to buy or sell elsewhere. You will have no claim against each other for any costs you may have incurred in connection with the property at this stage.
Once an offer has been made for a property the Estate Agent may ask you to pay a holding deposit, usually a few hundred pounds. This is not usual in the South-West (except for new houses); you should always ask the Agent for a receipt marked "subject to contract". The holding deposit should then count towards the total price paid for the property and if the sale does not proceed is refundable (subject to administration costs).
Make sure you tell us, your Solicitors, if you have paid a holding deposit.
We strongly recommend that you think carefully about having your own survey for the property you intend to purchase. Remember that a property is bought in its existing state and condition and that it is not possible to require the Seller to compensate you at a later stage for things of which you should have been aware.
Even when you are buying with a Mortgage and the property is being looked at by the Lenders Surveyor you should still consider having your own survey independent of the lenders valuation; you may have no redress against the Lenders surveyor for any mistake he makes in his valuation. At the very least you should give serious thought to asking your lender to arrange for a more detailed survey than the simple valuation which they usually have carried out. If you would like your own survey carried out and do not know who to appoint please let us know and we can quickly arrange this for you with an independent firm of Chartered Surveyors.
Having decided on your purchase, made a mortgage application and arranged for a survey it will be time for us to start the legal work involved in your move. There are a number of stages involved in the process.
Preliminary Legal Work
The Seller's Conveyancer sends us the contract, copies of the title documents, an information form with the important points about the property and a fixtures fittings and contents form showing the various chattels that are going to be left in the property.
We then carefully study these documents and then may ask questions based on these to help "approve" the title and the contract. The Property Information form deals with such matters as disputes, rights, fixtures, planning and is designed to prevent you buying a property which turns out to be affected by something which would have stopped you from buying it had you known about it.
We will also carry out various searches details of which are set out in the "Guide to searches when buying land". If there are any particular searches which you would like us to carry out. Please tell us as soon as possible to avoid delay.
It is not advisable to exchange contracts without the results of any searches made. In any event it is a requirement of most mortgage offers that all necessary searches are made.
Once a formal Mortgage Offer is received we will check the details in it are correct and are acceptable to you. They will then prepare or approve the Mortgage Deed and begin to make any arrangements in connection with any Endowment Policies.
Signing the Contract
Having carried out the pre-contract legal work, checked the Search results and information about the property, approved the mortgage offer and prepared any appropriate documentation we will ask you to sign the contract and pay the contract deposit. This is best carried out at our offices where everything can be explained to you fully.
We will have sent you copies of all the documentation which we have received which we think is relevant including:
- - matters revealed by title documents such as rights benefits covenants and restrictions affecting the property
- - the property itself - are you getting as much land as you thought you would be
- - fixtures and fittings - what is included in the price and what is extra
We will discuss with you matters contained in the contract such as completion requirements, deposits and remedies for late completion, the acceptability of the mortgage offer and any Endowment Policies that have to be put into effect.
At exchange of contracts the Buyer is usually asked to pay to the Seller a deposit. Normally this will be 10% of the purchase price (less any sum paid to the Selling Agents) or such less sum as the Seller is prepared to accept. You will usually need to pay a deposit to the Seller under the terms of the contract even if you are obtaining a 100% mortgage.
Although the need for a deposit can be annoying it is security for the Seller in the event of non-completion of the transaction in which contracts have been exchanged since refusal to complete can lead to forfeiture of the deposit. If you are selling at the same time you can usually use the deposit you get on your sale as the deposit on your purchase but this has to be agreed with your Buyer first.
Should you not have a deposit or not have a sufficient deposit in the last resort your Bank will usually help with a short term loan.
All deposit cheques must be payable to us (not the Seller) since only our cheque will be acceptable to the Seller at exchange of contracts. We will need the deposit from you in cleared funds. If you give us your personal cheque when you come into see us then it will be necessary for us to clear it and our Bank normally takes 5 working days to clear the cheque.
At this stage you will need to ensure that you have all the money you need to complete, for example the difference between the mortgage and the purchase price plus fees and stamp duty. We will require the balance of moneys from you prior to completion and we will need to have this in cleared funds. As a rule we would not complete unless you have paid our costs.
We will also discuss with you at that time such matters as your joint ownership of the property and whether you wish to make a Will.
Before exchange of contrats the completion date (i.e the day you move in) will be discussed. It will need to be acceptable to you and all others involved in any chain of transactions. When then are 3 or more people involved in the chain we suggest a completion date well in advance is proposed to allow for all those involved to see their Solicitors, arrange their removals and so forth. It is frustrating to gear yourself up for a date, make your personal arrangements only to find at the last minute that a person in the chain is refusing to exchange contracts and make the date legally binding. We do find this occurrence only too common -
Please check with us before arranging a completion date.
Exchanging contracts
Once you have signed the contract you are still not legally bound to buy. You will only be legally bound once the contracts are "exchanged". This is done by post or over the telephone and involves us sending your part of the signed contract and deposit to the Seller's Solicitors and the Seller's Solicitor returning to us the Seller's signed contract. You will frequently hear that the Solicitors have exchanged contracts "over the telephone" and this is based upon Solicitors undertakings that they will put the contract in the post that evening. Once a contract has been exchanged over the telephone by Solicitors it is just as binding as if it had been sent through the post.
If you are buying and selling the exchange of contracts will take place in such a way as to ensure that you are not committed to one side of the transaction without being able to proceed on the other unless you give specific instructions that the sale and purchase can be independent.
Only when exchange of contracts has taken place will you or the other party not be able to back out of the transaction and the proposed completion date will always be checked with you before exchanging contracts.
It is worth ensuring before contracts are exchanged that you have access to all the necessary moneys needed to complete the transaction. You will need:
- - the purchase price of the house less any deposit paid or if you are having a mortgage the difference between the purchase price and the mortgage
- - the cost of any fixtures and fittings which you have agreed to pay extra in the contract
- - a sum equal to any retention or deductions made in your mortgage
- - stamp duty based upon the value of your property (and rent, if new Lease)
- - Apportionments of Ground Rent and Service Charge on Leasehold properties or flats.
- - Land Registry fees paid to register your ownership of the property
- - our charges plus VAT and any search or other fees which are outstanding and which have to be spent on your behalf. You will frequently find that these other fees are referred to as disbursements
You will be sent full financial statement dealing with these before completion and as previously stated we need to be in receipt of these moneys in cleared funds before the completion date.
Final preparation
After exchange of contracts but before the completion date (the moving day) we will be dealing with the final conveyancing searches against the property, preparing any outstanding documents and arranging for the necessary mortgage and other funds to be sent through.
In the case of brand new properties, we will instruct the Lender’s Surveyor to carry out the final inspection and if satisfied to recommend the release of the mortgage funds. We will also advise you to make your own inspection and prepare a "snagging" list of any items that you wish the Builder to put right before completion.
We will arrange for you to sign any documents that have not already been signed, check that all life and house insurances are either already in effect or about to be put into effect and make arrangements for keys to be released to you.
It is time for you to arrange for the removal men. With your removals we do not recommend you make any definite booking until we inform you that contracts have been exchanged it is only then that you have a definite moving date.
If you are moving from rented accommodation it is unwise to give your Landlord notice to quit until after it has been confirmed to you that contracts have been exchanged.
Completion
Usually you will not need to come to our office on the actual day of completion as you will collect the key directly from the Seller or from the Estate Agent or, in the case of a new house, from the representative at the Site Office. All the technical aspects of completion will be dealt with without your attendance leaving you free to concentrate on the actual move. We do recommend however that you telephone us towards the end of the morning of the completion date in order to ensure that the moneys have been sent through to the Seller's Solicitor so that you can pick up the keys.
After completion
We will now deal with such formalities of the stamp duty and title registration. Once title registration has been completed we will send you a copy of the Land or Charge Certificate. If you have a mortgage, the original Charge Certificate and any other documents will be sent to your Building Society or Bank; if not, then the Land Certificate and supporting documents will be sent to yourself, or some other place, or kept in this firm's Strong Room (where they will be kept free of charge) for safe keeping.
Living Together - A Summary of How It Affects You and Your Rights
1. Buying your house jointly
You can buy either as beneficial joint tenants or tenants in common.
If you buy as beneficial joint tenants then the house belongs equally to both of you and if you die your partner will be the sole owner of the house automatically.
If you buy as tenants in common you should decide what share each of you should have. If you do not then disputes can arise, for example, about what each of you has contributed to the home. If you die as a tenant in common then your share of the house will not pass to your partner but in accordance with the terms of your will or under the rules of "intestacy". Under these rules your partner is not entitled to any share of your property which will go in the first place to any wife or husband you might have or to other members of your family including your children if any.
It is important, particularly if one of you has contributed more money than the other to the purchase of the house, to decide whether to buy as tenants in common or not.
2. Wills
It is very important to make a will if you are living together. This is because the intestacy rules (which apply if you do not make a will) do not take any notice of the claims of a partner to whom you are not married. Instead they provide that your property and money goes mainly to any wife or husband you may still have, or to your children and other members of the family (i.e. your next of kin. Your partner is not your next of kin). Your partner will not get any of your money or property if you die unless you make a will (apart from the house if you buy as beneficial joint tenants).
3. Joint Bank Accounts
If you have a joint bank account you will both be "jointly and severally" liable which means that each of you is wholly responsible for all the account including any overdraft on it.
4. Financial support
It is sometimes thought that if you live together for a long enough time you become married by "common law". This is not so. Even if you are supported by your partner while you live together he or she has no legal obligation to do so. This means that if you separate and have not been able to support yourself, for example because you have given up work to have a family, you cannot look to your partner to support you.
5. Children
Any children you may have will, of course, be illegitimate. The main effect of this is on the father of the children. He does not automatically get rights over the children in the way that a father of a legitimate child does. He can apply to the Court to be given parental rights but this is not automatic. Nevertheless the father of an illegitimate child is liable to support the child. However there is no assumption that a man is the father of the child of the woman he is living with. This is different from married couples where the law assumes that any child of the wife is fathered by her husband.
If a man's name appears as the father on a child's birth certificate then this is strong evidence that he is the father because for this to happen the man must have co-operated with the registration of the child's birth.
6. Violence
If your partner becomes violent or makes threats you can apply to the court which can order him or her to leave the house for a period of time. You can only obtain an order if you still are living together when the violence occurs; if you have already separated the court may not be able to protect you unless you have actually been physically assaulted.
7. Income tax
If you live together unmarried then you are treated separately for tax purposes. This means that you cannot claim a married person's allowance and also cannot claim some other allowances; for example if the man dies the partner cannot claim the widow's bereavement allowance.
On the other hand there are certain allowances which can be claimed such as the "single parent" tax allowance.
8. Social security
For most purposes cohabiting couples are treated as one family unit for welfare benefits.
9. Council tax
In the first instance each of you will be liable for your own Council Tax. However if your partner fails to pay then the authorities can look to you to pay your partner's Council Tax. This may be a particular problem where you separate but the partner left in the house has to pay the poll tax for the time that you were living together.
10. Pensions
Most pension schemes do not provide specifically for payments to a cohabitee although there may be some reference to payments being made to "dependents". This might be relevant if your partner supports you before his or her death. Sometimes, if you are still married to a previous spouse, living with another person may mean that you cannot be entitled to benefit from the pension scheme of the husband or wife you have left.
11. When you separate
If, unfortunately, you separate then difficulties may well arise as to the division of the property you have built up between you. When married couples divorce, the Court has power to re-arrange the family property to provide a home for children, and a fair division of the assets. There is no equivalent power relating to cohabiting couples.
This means that there can be great difficulties about the money and property. This particularly applies to the family home and providing a home for the children. Because of this, it is worthwhile thinking about what should happen if you separate before it actually occurs and if possible reaching an agreement about this before you live together. This is particularly important if one of you contributes more financially than the other at the beginning of the relationship.
If there is a house which was bought for the purpose of providing a family home, then the Court does have power to prevent it being sold in some circumstances, but this cannot be relied on.
If you are in any doubt about the legal aspects of living together then please ask us for more information. We can obtain a booklet for you setting out the situation in more detail and we can of course advise you as to how the law applies to your particular circumstances.
These notes are here as a guide and will not necessary take into account your specific circumstances. If you have any problems or queries or would like to discuss this in further detail, please contact us for an appointment or give us a call.
Guide to Searches - When Buying Land
We will always carry out the following search for you:
Local Authority Search (Local Search)
The Local Authority Search deals with such matters as adoption of roads, the building of new roads in the vicinity of the property, drains planning consents and development proposals for the property. It is important to note that the Local Authority Search only covers your particular property and not any neighbouring property however close; so it does not reveal relevant information about neighbouring properties e.g. planning proposals and permissions. If therefore you have any specific concerns then please draw these to our attention so that enquiries can be made about them. Local Authority Searches can take varying lengths of time from a few days to several weeks. In Plymouth the system is computerised and they are normally returned within a week. Other neighbouring Authorities usually take about 10 days. It is possible with some Local Authorities to obtain a personal search of the Register but these can be very expensive and are invariable less detailed than the "Official" Search and in the event of an error you have no claim against the Local Authority. We do not recommend this course of action on a general basis. There are also various other Searches that may be recommended by for particular areas and properties for example:
Index Map Search
This will be required from H M Land Registry if the title to the property has not been registered.
Commons Registry Search.
Needed if the property borders on moorland or a Village Green.
Mining Searches
Tin Mining
If there has been mining activity in the area in the past we strongly recommended that a Mining Search is carried out. This applies to much of West Devon and Cornwall. Most Areas Heavily Mined Areas
China Clay Mining
Likely in parts of South West Devon and Cornwall. The search will reveal likely future plans as well.
Coal Mining
If the property is in an area formerly or now to be mined for coal a specific search can be made of British Coal; this will also reveal future plans for coal mining. Normal fee for one domestic property
Cheshire Brine Subsidence
Local to Cheshire.
West Midlands & Shropshire Limestone Mines
All Local Authorities in that area deal with these individually; mostly as an additional question on the Local Search. It is also sometimes recommended to carry out Searches in connection with railways, routes of pipes, and cables for waterways and these will be discussed with you if appropriate in any particular case.
Radon Gas Survey
This naturally radioactive gas is prevalent in many parts of Devon and Cornwall, being associated with granite. It can build up in certain buildings which are not suitably ventilated. A leaflet is enclosed and we can advise on a survey if you wish. Please see us if you wish to discuss this further.
British Geological Survey (BGS)
BGS has developed a computer programme which guages the susceptibility of properties to underground gases that cause lung cancer and explosions. A report can be obtained from BGS detailing underlying geology, previous uses of the land, risk of subsidence and presence of radon gases. Telephone number 0115 936 3192.
Mortgages and Bankruptcy Searches
If you are obtaining a mortgage we are required by your Lender to carry out a Bankruptcy Search at the Land Charges Registry to ensure there is no Bankruptcy entry against you. This is a Search against your full names. If an entry is revealed against your full name or your surname (the register searches against both automatically) we have to prove that it is not you. It is not sufficient for you to state that any entry does not relate to you. Further searches or enquiries will be involved which take time. In order to avoid any delay at completion when we normally carry out the search, we also do it before exchange of contracts. There is duplication of fee of £1.00 per borrower but the time saved if an entry comes up against your name or surname makes this an economic exercise.
If there are any particular searches which you would like us to carry out please tell us as soon as possible to avoid delay.
Buying A Property Together
If you buy a house jointly with a partner, spouse, relative, friend or colleague, it is quite important that you understand and resolve beforehand what is often considered to be a rather tricky legal problem.
The all important question is: Should you be joint tenants or tenants in common?
"Tenants" in this context has nothing to do with leasing a property or paying rent. It is a legal term.
If you buy your property as joint tenants nd one of you dies the survivor automatically inherits the house regardless of whether you have a Will or of anything that may be in the dead person's Will.
If, however, you buy as tenants in common and one of you dies, the surviving partner will not automatically inherit the whole property and the ownership of the dead person's share will depend on what is in the dead person's Will (or be governed by the law relating to intestacy if that person has not made a Will).
Where it is spouses who are purchasing the house, it is important to remember that divorce is now very common, therefore, the way in which you jointly own property should depend upon your individual circumstances, particularly if one or other of you has been married before.
For example, it is not unusual for a divorced mother or father who remarries to want his or her share of the new house to be left to the children by their first marriage. Obviously, the same thing is often true where somebody has been widowed and then marries again.
The majority of properties are owned jointly in such a way to enable the survivor to inherit. In other words, the parties are joint tenants and this is generally because it is assumed that joint owners of property will agree to the survivor taking all, unless there is written evidence to the contrary.
The important thing to remember is that if you are joint tenants so that the survivor takes all, this will happen regardless of what is in the deceased's Will.
We quite often advise engaged couples buying property before they marry, or perhaps who are buying property with no firm intention of getting married, to consider carefully whether they would be better off as tenants in common rather than joint tenants. Unless they make Wills in favour of the other, they will not inherit since they are not related or each others next of kin. It is not unusual for one person to contribute a major part of the deposit or amount being paid in cash even where both will contribute to the mortgage. If one party is making an unequal contribution towards the property then their share of the property can be evidenced in writing by means of a Trust Deed which is then lodged with the Deeds. All that a Trust Deed does is to provide evidence of the parties' intentions as to how their shares in the property should be divided on a sale. If there is a need for such a Deed, then it is advisable to hold the property as tenants in common since obviously the Trust Deed is of little use or effect if the property is owned by joint tenants and the deceased's share automatically goes to the survivor.
It is possible to change from joint tenants to tenants in common and vice versa at a later date with a legal document if your circumstances change.
Please think carefully about the points raised in this note. It is not meant to be an exhaustive explanation of the law. It is meant to be thought provoking so that you will ask your solicitor about anything you do not understand. Remember that you have instructed your solicitor to act for you so that he or she can help you, but your solicitor is very familiar with the procedures connected with buying a house and may, therefore, need reminding that something which is clear to him or her may not be clear to you!
Finally, you will probably have realised that if you are buying a house you should consider making Wills.
Please Note: These notes are only intended as an outline guide to the Law. If you have any queries or points please see us or another independent advisor.
The law is as at April 1998
Cleared Funds
We treat the following as cleared funds:
1. Monies received in cash
2. Bankers drafts
3. Cheques drawn and signed by
Building Societies or Banks
4. Solicitors client account cheque from other firms
5. Funds transferred to our bank account throug the Clearing Banks’
CHAPS or BACS systems
6. Personal and other cheques after they have been cleared through the banking system which takes 5 working days. We can arrange (if agreed when it is paid to us) for it to be specially cleared.
If it is necessary to use any personal or other cheque within 5 working days then it will be ‘specially cleared’ at a cost to you (raised by our Bank) of £11.00. Special Clearance normally takes at least 24 hours in any event.