Emyr Pierce

I am buying a new house, but will be abroad on an extended business trip when final contracts are due to signed. What should I do?

You are never sure when contracts are likely to be exchanged and a completion date agreed but, naturally, it is not a good idea to be abroad when you are due to complete.

However, in order to facilitate an exchange of contracts in your absence you can either visit your Solicitor before leaving for your business trip and sign all documentation well in advance - leaving strict instructions as to the basis on which the Solicitor is authorised to proceed in your absence - or you may grant a Lasting Power of Attorney dealing with your Property and Affairs, restricting the authority to the appointed Attorney to simply deal with the signing of all documentation relating to your purchase of your new property.

Unless there are major outstanding items on which your Solicitor will need your specific instructions, or indeed no papers have in fact been received before you go away, then it is normal for you to give your Solicitor strict instructions as to the basis on which you would be happy to proceed.

If you are only buying a property and are in no hurry to move in, then ensure your Solicitor has the relevant amount of money made available to him to allow him to complete on your behalf if you are still abroad.

Having exchanged contracts on a house I am buying I now discover there are some tiles missing from the roof and in the recent heavy rain it has caused water damage to the ceiling in one of the bedrooms. Is this now my responsibility, or can I insist on the vendor getting the roof repaired and the damage made good before I move in?”

This all depends on the terms of the Sale Contract. You are entitled to purchase the property in the same condition as existed when you viewed and, in particular, on exchange of contracts. If the seller remains liable for insuring the property then he may be able to claim for the damage on his own insurance.

If the contract specifies you are responsible for insuring the building on exchange of contracts then any such insurable damage would be your responsibility. On the basis that this damage has happened since exchange of contracts - and clearly not caused by the seller - then arguably it is an insured risk and the person responsible for insuring from exchange will be responsible and will have to make a claim under the appropriate policy.

We have had an offer accepted on our house and were due to exchange contracts last week only for our buyer to withdraw suddenly from the sale of our property. We have placed our property back on the market, but are desperate not to lose the property we wish to purchase. Is there anything we can do to convince our vendor not to look for another buyer? Should we take out a Bridging Loan?

Your success in securing the house of your dreams lies entirely in the hands of your seller. If the seller is willing to wait a little longer in the hope that you can find an alternative buyer then you have a chance of rushing through a subsequent sale to a new purchaser and secure the house.

However, if you are under pressure to commit to the purchase while you still have no buyer for your existing property then this can only be done by arranging finance for the full purchase price of the new property leaving you with, effectively, two properties and, probably, two loans.

It is unlikely that any financial institution will look favourably upon providing you with “open bridge” facilities in the current financial climate. This is where the funds are provided for the full purchase price of the new property while your existing property remains unsold, and is a dangerous step as there is no determining when the loan will be repaid.

The simple advice would be – do not consider an “open” Bridging Loan”!

My partner and I have made an offer on a house which has been accepted and we would due to exchange contracts next week. He has now said it is too soon for us to live together but I can’t afford to buy on my own. Can we walk away from this, or is it too late?

Fortunately, it is not too late as you may withdraw from any transaction prior to contracts being unconditionally exchanged. Despite you being virtually on the point of exchanging contracts, it is possible for either party to withdraw from the transaction. You are therefore free to withdraw without any obligation to indemnify the seller for any of his abortive costs or for inconvenience caused.

A late withdrawal like this often infuriates the innocent party as they have no recourse to make any claim for the recovery of their abortive costs. All you can do is apologise to the seller for your late withdrawal, which is due to a change in your personal circumstances which are clearly beyond your control.

I am buying a property that was built in the 1980s. Should I check the condition of the central heating?

Of course. Other than the structure of the building, the central heating system is the most expensive component in any property and you are deemed to buy a property in the full knowledge of its state and condition.

I would always advise a purchaser to have the central heating system inspected by a central heating engineer prior to exchange of contracts in order to ensure it is in good working order.

Should your Engineer’s Report condemn the system then you would have identified that it needs either replacing or substantial repair, before making a legal commitment to purchasing the property. This would enable you to re-negotiate the price.

Should you complete the purchase and then arrange for the system to be serviced only to find out that the system is condemned, it would then be too late for you to claim any recompense against the seller, or re-negotiate the purchase price.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

We have signed contracts, agreed exchange dates and are due to move into our new home in two weeks time, but the sellers are now saying they cannot move out for at least another week. There are people moving into our house, so we will have nowhere to go. Can we force the sellers out so that we can move in on the agreed date?

This is a scenario that should never ever arise. The fact that you are in such a position suggests you have already exchanged contracts on your sale and are committed to moving out on the date already agreed on your sale.

While the same date may have been anticipated on your related purchase the fact that contracts have yet to be exchanged on your purchase means that this can always change. Accordingly, the failure to exchange simultaneously on your related sale and purchase has led you to this impossible situation.

You cannot force your sellers to move out of the property despite the fact that they may have agreed the proposed completion date many weeks previously. It is only on exchange of contracts that the parties are legally committed to a completion date. You have, therefore, taken a risk in exchanging contracts on your sale without a simultaneous exchange of contracts on your related purchase and as things have panned out your dates are not going to coincide.

You have no alternative other than to move into temporary accommodation regardless of how short this period may be – a prospect you should have considered very carefully when you decided to exchange contracts on your sale independently.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

I am almost at the stage of exchanging contracts on a property and have been asked to provide a deposit of 15% of the agreed purchase price. Is this normal and if I question it could I be in danger of losing the house?

It is a standard contractual obligation that the buyer is required to provide a deposit of 10% of the purchase price on exchanging contracts – but not 15 per cent. In fact, it is common these days for sellers to accept a reduced deposit as contractual terms will cover the vendor in the event of the matter proving abortive and the seller having to request the balance of the 10% from the buyer.

It is also commonplace that whatever deposit is available at the bottom of the chain, this will be passed up the chain or, indeed even more common these days, the deposit is held by the solicitor at the bottom of the chain to the order of those higher up the chain.

It is a specific condition of the contract that, in the event of the buyer failing to complete, the seller is entitled to forfeit the deposit. If however a deposit of less than 10% is handed over on exchange, this would potentially prejudice a seller and, accordingly, all sale contracts contain a Special Condition whereby the seller can compel the buyer to pay the balance of the 10% deposit in the event of the buyers’ failure to complete.

Only in extreme circumstances, often where a protracted completion date of, say, 6-12 months is agreed, could the buyer be asked to provide a larger deposit. In the absence of such circumstances, any request for a deposit in excess of 10% should be refused.

• Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk