Standard Conditions Of Sale (5th Edition) Guide

The standard conditions of sale are a set of Law Society produced contract conditions to which the vast majority or residential sale contracts are subject. A solicitor is not obliged to incorporate the standard conditions of sale into any contract he drafts but it is very rare to see a contract which is not subject to them. The standard conditions of sale cover most foreseeable eventualities arising from a land transaction such as what happens in the event of late completion, if the buyer wants to occupy the property before completion, who is responsible for insurance etc.

The version of the standard conditions of sale currently in use is the standard conditions of sale 5th edition (2018 Revision). Although the 5th edition has been around for quite some time now, it’s possible that some solicitors will still be using earlier versions such as the pre 2018 revision or even the 4th edition, so I've retained the guide to the standard conditions of sale 4th edition as a pdf file here. There are two other editions, the National Conditions of Sale 20th Edition and the Standard Conditions of Sale 3rd Edition which are rarely encountered. We will be concentrating on the 5th Edition. For those of you who are familiar with the 4th edition, we'll flag up some of the major changes. You can download the Standard Conditions of Sale 5th Edition from our conveyancing documents section by clicking on the link, as well as the 4th Edition.

1 General

1.1 Definitions

This section just defines certain words and terms used in the standard conditions of sale 5th edition (2018 Revision) and is self-explanatory.

1.2 Joint Parties

This clause of the standard conditions of sale 5th edition makes the point that where there is more than buyer or seller any obligations imposed under the contract can be enforced against them jointly or individually. For example if buyers withdraw from the contract after exchange and become liable to the seller to forfeit the deposit, but the deposit was not paid in full on exchange, then the seller can sue just one of the buyers for the whole amount owing, rather than having to sue each buyer for the share he is responsible for.

1.3 Notices and Documents

From time to time, it is necessary to serve a notice under the contract, and the standard conditions of sale set out the rules that apply. The important points are that a notice can be served either in person, by fax, DX post or Royal Mail. It can also be served by e-mail, but only if the recipient has given an e-mail address in the contract (which in practice is rare). If, in response to an e-mailed notice, a standard "out of office" reply is received, then the notice is deemed not to have been received. A notice must be given in writing (i.e. not on the telephone) and can be given either to the actual buyer or seller or their conveyancer. Any notice received on a non-working day, or after 4pm on a working day, is treated as having been received the next working day. Unless there is proof to the contrary, a notice is treated for the purposes of the standard conditions of sale 5th edition as being received as follows:

  • If sent by DX, before 4pm on the 1st working day after it would normally be available for collection
  • By 1st class post, before 4pm on the 2nd working day following posting
  • By Second class post, before 4pm on the 3rd working day after posting
  • By fax, one hour after despatch
  • By e-mail, before 4pm on the 1st working day after despatch

Note that if service by email is permitted then it is not deemed to be received until the next working day without proof to the contrary. A read receipt (not merely a delivery receipt) should therefore be used where time is of the essence. When sending a fax it is a good idea to retain the delivery report, particularly if the fax is sent after 3pm (so within 1 hour of 4pm).

1.4 VAT

This section of the conditions of sale states that any obligation to pay money under the contract includes an obligation to pay any VAT due on that sum and that all sums quoted in the contract (such as the purchase price) are exclusive of VAT. This is not relevant in residential contracts since no VAT is payable on residential property transactions.

1.5 Assignment and sub-sales

This clause simply makes the point that the buyer is not entitled to transfer the benefit of the contract, i.e. after exchange of contracts the buyer named in the contract cannot nominate another buyer to take his place.

2 Formation

2.1 Date

If contracts are exchanged in person, the date of the contract is date when the actual exchange takes place. If the exchange is done over the telephone then the standard conditions of sale 5th edition state that the date is date on which the last copy of the contract is posted, or, if the solicitors agree (and in reality they always will) the date and time of the telephone call. Note that when exchanging using one of the Law Society exchange formulae there is an implied undertaking that the contracts will be posted that day. If for any reason that won’t be possible then the undertaking should be expressly varied.

2.2 Deposit

On the day of exchange, and no later than the day of exchange, the seller (or his solicitor) must send to the buyer (or his solicitor) a cheque, or make a bank transfer, in the sum of 10% of the purchase price. UPDATE :This is a change from the 4th edition standard conditions of sale, under which the deposit was equal to 10% of the purchase price and chattels price combined.

It is obviously important that the payment does clear. If it does not then the seller may, within 7 days of a cheque being dishonoured, withdraw from the contract without penalty. The deposit should only be paid either by direct credit into the seller's solicitor's account or by a cheque drawn on a solicitor's/licensed conveyancer's client account.

If the seller is also buying a property then he may use some or all of the deposit received on his sale as the deposit on his onward purchase. If he does so then it should be passed on on terms that his seller's solicitors hold the deposit as stakeholder (unless they too use the deposit for an onward purchase), and his solicitor must hold any balance which he does not use as stakeholder also. Stakeholder means that the deposit is held by the solicitor and is not released to the seller until completion or until the buyer defaults on the contract and forfeits the deposit. The alternative way to hold the deposit is as agents for the seller. If it is held in this way then it may be released to the seller prior to completion. This is usually only done when the property is bought at auction (see below) or when the seller is a builder covered by the NHBC scheme (in which case the deposit is insured by NHBC) and the standard conditions of sale are usually varied in contracts for new builds.

Although not part of the standard conditions of sale, it is worth mentioning here that it is not unusual for a deposit of less than 10% to be available on exchange, for example if the buyer is using a deposit received on his connected sale as the deposit on his purchase. Very often someone who is selling and buying will be using a combination of equity from the sale and a mortgage to fund the purchase. Neither the equity nor mortgage advance will be available until completion so the only funds he has for the deposit are the deposit from his sale. If the property he is selling is worth less than the one he is buying then 10% of the sale price will not equal 10% of the purchase price. There is really no reason in this circumstance not to accept a lesser deposit and the seller is still entitled to a full 10% should the buyer default, but the solicitor should explain to the seller that to recover the difference between 10% and the amount actually paid over on completion he will need to sue the buyer. If there is no deposit at all available then it is still possible to exchange on nil deposit, however it is common in this case to exchange and complete on the same day, thus removing the risk of default by the buyer.

If there is not enough time between exchange and completion for a cheque to be delivered to the seller's solicitors and to clear into their account then it will usually be "held to order", that is to say held by the buyer's solicitor on terms that it should be released to the seller's solicitor on demand, albeit this practice may change now that bank transfers have replaced cheques as the primary method of payment. In reality it is usual to pay it on completion along with the balance of the completion funds. There is an argument for he deposit to be held to order in any event, as it avoids the additional work as well as the risk that the deposit might fail, for any reason, to reach its destination in time.

2.3 Auctions

There special provisions in the standard conditions of sale 5th edition for properties sold at auction. If a property is sold at auction then a reserve price must be set, and the seller may himself bid, but only as far as the reserve price. Bids are accepted or refused at the auctioneer's discretion. The deposit is to be paid to the auctioneer as agent (see above). Please note that this section deals only with the standard conditions in relation to auctions and also that the Common Auction Conditions of Sale will often be used in place of the Standard Conditions. The subject of buying property at auction will be covered more fully in a separate chapter.

3 Matters affecting the property

3.1 Freedom from Incumbrances

Incumbrances are interests which others have in the property, such as mortgages, rights of way or occupation, adverse entries revealed on searches etc. Under the standard conditions the incumbrances to which the property is sold subject are :-

  • Those specifically referred to in the contract;
  • Any which are discoverable from an inspection of the property before exchange (for example if there is a tenant in the property and it is not confirmed prior to exchange that he will vacate, or if there is a lake on the land at which people are fishing);
  • Anything which the seller does not, and could not reasonably, know about;
  • Entries made before the date of the contract in any public register (such as entries which would be revealed in searches) except those maintained by HM Land Registry, its Land Charges department (not to be confused with the local land charges register which is maintained by the local authority) and Companies House; and
  • Public Requirements.

On the face of the contract there will be a section “Specified Incumbrances”. This defines what specific incumbrances the sale is subject to (see bullet point 1 above). In its basic form it will usually read “All matters contained or referred to in the registers of title number ABC123456”. The standard conditions of sale are, arguably, slightly deficient in this regard ad there are two standard amendments which the buyer’s conveyancer should consider – the first is to add “dated and timed at ”. The effect of this is to ensure that the entries on the title that the buyer is buying subject to are those which are revealed on the official copies provided by the seller and not any that are added between then and exchange. The second is to add on the words “except for financial charges”. This means that the buyer is entitled to take the title free from any mortgages or other financial charges which are on the official copies supplied by the seller.

When these alterations are proposed by a buyer it is not uncommon for a seller to suggest adding the words “created by the seller” after “financial charges”. The risk of agreeing to this is that there is a possibility that a charge might be created by someone other than the seller, for example via a charging order.

The seller must inform the buyer in writing of any matter affecting the property which he learns about after exchange. The buyer is to be responsible for the cost of complying with any outstanding public requirement and is deemed to have indemnified the seller against any liability in this regard.

3.2 Physical State

According to the standard conditions of sale 5th edition the buyer accepts the property in the state it is in at the time of exchange, therefore it is sensible that the buyer should make a final inspection just before instructing his solicitor to exchange contracts in case there has been any damage following his initial viewing which has not been disclosed, otherwise it may be difficult to prove who is liable for any costs associated with damage discovered after completion. This does not apply if the property is being newly built or converted. If the property is leasehold then the buyer accepts the property subject to any subsisting breach of a condition or obligation upon the tenant relating to the physical state of the property which renders the lease liable for forfeiture. If any such matters exist therefore they should be dealt with prior to exchange.

3.3 Leases affecting the Property

This section applies when the property is subject to a lease or leases, i.e. where the seller is the landlord, rather than in the assignment of a lease. The buyer takes the property subject to all the terms of the leases affecting the property of which he has had notice. If, after exchange, the lease ends or the tenant makes some application in respect of the lease, the seller is to inform the buyer immediately and take any action which the buyer reasonably directs, provided that the buyer agrees to indemnify the seller against any expense incurred in following the direction. Except with the buyer's consent, the seller is not to take steps to end the lease or agree to any proposed alteration to the terms. He must inform the buyer immediately should any alteration be agreed. Following completion the buyer agrees to indemnify the seller against any claim made by the tenant which cannot be enforced against the buyer because he is not yet the registered proprietor.

The seller takes no responsibility for what rent is lawfully recoverable nor for whether or how any legislation affects the lease. This means the buyer must investigate the validity of the lease and the level of rent before exchanging contracts.

3.4 Retained Land

UPDATE: The clause on retained land has been removed from the standard conditions of sale 5th edition.

4 Title & Transfer

4.1 Proof of Title

This section is really only useful in respect of properties purchased at auction, since a conveyancer would never exchange contracts without having seen the title, however it is still applicable to all contracts which incorporate the standard conditions of sale 5th edition.

Without cost to the buyer the seller must provide proof that he owns the property or that he has the right to sell. If the property is registered then this proof must take the form of Official Copies of the title and other documents which are referred to within (except anything which will be removed on completion, such as mortgages). If the property is unregistered then an abstract or epitome of title with copies of all the documents required to form the chain of ownership from the root of title to the present, together with copies of any earlier documents referred to within the epitome as containing matters affecting the property (unless these matters are also set out in the documents forming the epitome). Where copies are produced the epitome should state that the originals or examined abstracts of all the documents will be handed over on completion.

In any case if the seller is selling under probate then an office copy of the grant of probate is also required, or if selling a property which was held as joint tenants and the other tenant is deceased, a certified copy of the death certificate.

4.2 Requisitions

After exchange, the buyer may not raise requisitions (enquiries) on any matter revealed in the title if the seller has provided proof of title prior to exchange, nor may he raise requisitions on matters contained 3.1.2 of the standard conditions of sale 5th edition (which lists the incumbrances to which the transfer will be subject, see 3.1 above).

If a matter comes to light after exchange, for example an additional charge is registered which was not revealed on the official copies supplied by the seller before exchange, the buyer may within 6 working days of the matter coming to his attention raise requisitions on that matter. If he does not do so within 6 days he then loses his right to raise any requisition.

4.3 Timetable

This section sets out the time limits for performing certain actions post-exchange. In reality this section rarely comes into effect since the title will be delivered to the buyer and enquiries will be raised and replied to prior to exchange. Nonetheless, there will be limited occasions where the time limits are relevant, particularly when properties are bought at auction.

The seller must deliver proof of title to the buyer immediately following exchange. The buyer must then raise any enquiries he may have within 6 days of exchange or of receiving the proof of title (whichever is the later) and the seller must respond within 4 working days. The buyer then has a further 3 working days in which to make any observations he might have on the seller's replies.

There are also time limits in respect of drafting and approving the transfer, which can run concurrently with the above. The buyer must forward a draft transfer at least 12 working days prior to completion. The seller must either revise or approve the transfer within 4 working days of receipt. If the seller has revised the transfer then the buyer must supply the seller with a further, engrossment copy at least 5 working days prior to completion. If the period between exchange and completion is less than 15 working days the time limit for each action is reduced on a pro rata basis, i.e. if there are 10 working days from exchange to completion then the buyer has just 4 days (two thirds) to raise enquiries, and so on.

4.4 Defining the Property

The standard conditions of sale 5th edition make it clear that the seller is not obliged to prove the exact boundaries of the property or the ownership of any boundary structures, nor is he obliged to identify separate parts of the property which come under different titles, save that he is obliged to disclose any information he has if requested to do so. These issues should therefore be resolved prior to exchange.

UPDATE The requirement for the seller to make and pay for a statutory declaration as to the boundaries at the buyer's reasonable request has been removed in the standard conditions of sale 5th edition.

4.5 Rents and Rentcharges

This section of the standard conditions of sale is self-explanatory, though it may prove useful to visit the page on “Official Copies” and look at the Charges Register section for an explanation of rentcharges.

4.6 Transfer

By drafting and supplying the transfer the buyer does not prejudice his right to raise enquiries. The seller is deemed to sell with full title guarantee, save that the transfer is subject to the matters referred to in standard condition 3.1.2 (see 3.1 above). This is the case unless the contract specifically states that the seller sells with limited, or no, title guarantee, in which case the contract prevails over the standard conditions of sale. For an explanation on title guarantee see the page on “Contracts for Conveyancing”. If after completion the seller will still be bound by any obligation affecting the property which was disclosed to the buyer prior to exchange, such as a covenant, then the buyer is to covenant in the transfer to indemnify the seller against any future liability, unless the law implies such a covenant. The seller is entitled to require that the buyer supply a duplicate of the transfer duly executed by him if a covenant has been entered into.

UPDATE: If the property is leasehold then the transfer is to contain a statement that the covenants set out in section 4 of the Law of Property (Miscellaneous Provisions) Act 1994 will not extend to any breach of the tenant's covenants in the lease relating to the physical state of the property. Prior to the standard conditions of sale 5th edition this clause was a common special condition. It means that a seller selling with full title guarantee is not liable to the buyer to remedy any current breach of the lease relating to the physical state of the property. He would be liable in respect of some other breaches.

4.7 Membership of a Company

UPDATE: This provision is new for the standard conditions of sale 5th edition. This provision applies where a seller is or should be a member of a management company. This often happens with leasehold property where a tenant owned management company owns the freehold of a building but can happen on a freehold estate where there are private communal areas, for example landscaped areas or a park. It provides that the seller, whether or not he is actually a member of the management company, must produce at his own expense to the buyer the documents necessary for the buyer to become a member i.e. his membership certificate and presumably, any fee for registering the same.

This clause does not explicitly oblige the seller to take any action where the company in question is limited by shares (where the obligation would be for the new owner to become a shareholder rather than a member). Traditionally the obligation in respect of any fees for registering share/membership certificates would be accepted by the buyer and that is generally still the case in practice.

5 Pending Completion

5.1 Responsibility for the Property

UPDATE: This clause effectively reverses the position that existed under the standard conditions of sale 4th edition. Under the standard conditions of sale 5th edition the buyer is now responsible for the property between exchange and completion. The seller is not obliged to the buyer to maintain insurance unless he is obliged to under a lease or tenancy agreement or for some other reason, though if the seller has a mortgage on the property he is still obliged to the lender to maintain insurance under the terms of the mortgage.

If the seller does insure, he is obliged to take steps to ensure that the insurance remains in force until completion and is not invalidated, and to cancel the insurance immediately on completion.

The effect of this provision is that should anything happen to the property between exchange and completion the buyer is still obliged to complete at the contract price, so it is absolutely essential, unless the seller is otherwise obliged to do so, that the buyer insures.

5.2 Occupation by the Buyer

If the seller agrees to allow the buyer to occupy the property between exchange and completion then the buyer occupies under licence (no tenancy is created as this might give the buyer additional rights which are not intended) from the seller on the following terms:-

  • The licence cannot be transferred, that is to say the buyer cannot pass his right to occupy the property to someone else;
  • Members of the buyer's household only may occupy the property with him;
  • The buyer is to pay for or indemnify the seller against all outgoings and other expenses associated with the property;
  • The buyer is to pay a fee to the seller at the same rate as interest would be charged under the contract for late completion. The calculation for this is ((purchase price + chattels price) - deposit actually paid as opposed to held to order)/100*contract rate/365. This fee is payable daily for every day of occupation up to completion. The buyer must not alter the property and must maintain it in the same state, except for fair wear and tear, as it was on exchange; and
  • The buyer must immediately vacate the property when the licence ends.

The buyer is not considered to be in occupation, and therefore this section does not apply, where the buyer is merely granted access to carry out works but does not live in the property. The licence is deemed to have ended on the earliest of the date of completion, rescission of the contract or 5 working days following a notice given by one party to the other that the licence is to come to an end. If the buyer remains in the property after the licence has ended but before completion then he is to continue to pay the fee as calculated above for every day up to completion.

6 Completion

6.1 Date

According to the standard conditions of sale the completion date is 20 working days from exchange, but in fact this clause is never relied upon. Instead, a completion date is agreed prior to exchange and is inserted on the face of the contract. As long as enough time is allowed for the solicitors to complete the pre-completion formalities then the date can be any working day which is convenient to all buyers and sellers in the chain. There is no minimum or maximum time between exchange and completion.

If the money is received by the seller's solicitor after 2pm on the day of completion then completion is treated, for the purposes of 6.3 and 7.2 only (which deal with apportionments and compensation), as having taken place on the next working day. This does not mean that the seller is entitled to withhold possession from the purchaser provided his solicitors do receive the funds before close of business. A seller may of course be left in a situation whereby his solicitors receive the funds too late to transfer on to his onward purchase thus leaving him unable to take possession of his new property and whilst under the contract he should still vacate, there is little the buyer can do if he chooses to remain. There are various remedies available in the event of late completion and for a fuller discussion go to the chapter on Completion.

The latest time for completion is often amended by the seller where he also has an onward purchase. If the time is 2pm in both his sale and his purchase contract then he runs the risk of receiving funds on his sale at, say, 13.59, meaning the buyer is not in breach, yet he cannot get funds to his seller by 14.00, thus placing him in breach of his purchase contract. He should therefore ask for an earlier time in his sale contract, say 13.00, which his gives him the time to complete his purchase.

It is normal for a common sense approach to be taken on completion, so that as long as everyone receives their keys and money before close of business and no one suffers a loss, no action will be taken even if monies are received after the contract time, however a seller is still within his rights to claim interest at the contract rate if there is a breach and this will sometimes happen.

6.2 Arrangements and Time

The standard conditions of sale state that completion takes place at the offices of the seller's solicitor or some other place, in England and Wales, that the seller's solicitor reasonably directs. There was a time when the two solicitors used to actually meet on the day of completion and physically exchange the deeds and money. That is rare nowadays and this clause is fairly redundant, though for technical reasons completion is usually said to take place at the office of the seller's solicitor.

6.3 Apportionments

Any income or expenditure affecting the property which has either been received or paid in advance should naturally be apportioned on completion and this is dealt with in standard condition of 6.3. This does not affect such things as utilities, council tax etc which should be apportioned by the companies which collect it. If the property is tenanted and the tenant is to remain following completion then he will have paid rent for that particular month in advance. Unless completion takes place on the day the rent is due therefore the buyer will be entitled to the rent for the period from completion to the date it is next due, and this is generally dealt with via an allowance on completion, that is to say that the buyer pays over to the seller the purchase price less the amount of rent the buyer is due.

There may be an annual rent and/or service charge payable on the property, particularly if the property is leasehold, in which case the seller will usually have paid this in advance beyond the date of completion and will therefore be entitled to receive back from the seller the amount of overpayment. This should be paid in addition to the purchase price on completion.

When calculating an apportionment it is assumed under the standard conditions of sale that the amount in question accrues at an equal daily rate every day of the month/quarter/year. For example if there is an annual ground rent of £730 per year, then the daily rate will be £2 per day, so if the rent year runs from 1st January to 31st December, completion takes place on 30th November and the seller has already paid the rent for the year then he will be due back £62 (31 (being the days left in the year) x 2 (being the daily rate)). For the purposes of apportionments the seller is deemed to own the property on the day of completion. If the apportionment cannot be ascertained on completion, for example if it is in respect of service charge and this is demanded in arrears, then an apportionment is to be made according to the best estimate available and once the actual figure is known any balance is to be paid within 10 working days.

To account for situations where it is anticipated there will be an amount for which the seller will be liable but which cannot be ascertained at completion, such as a balancing service charge payment (where demands are issued based on an estimate but the final spend for the year is above estimate), it is common for a retention to be held, either by the buyer's solicitor or seller's solicitor, from the sale proceeds. Once the payment demand is issued the seller's liability will be deducted from the retention sum and the balance returned to him.

6.4 Amount Payable

The amount payable on completion is to be the purchase price plus the price of any chattels, less any deposit already paid. The amount should be adjusted to take account of any apportionments made under condition 6.3 or compensation payable under condition 7.2.

6.5 Title Deeds

As soon as the buyer has complied with his obligations on completion (i.e. paid the total money due) the seller is to hand over all the title deeds.

6.6 Rent Receipts

Where a receipt for payment of rent or service charge has been given to the buyer he is to assume that the person giving the receipt is either the person entitled to payment or his agent.

6.7 Means of Payment

The buyer is to pay the money over on completion by direct credit to the seller's solicitor's bank (i.e. by CHAPS transfer), and if the seller's solicitor is holding a deposit as stakeholder, by unconditional release of that deposit (the release in reality happens automatically).

6.8 Notice to Complete

If completion has not taken place by the completion time stated in the contract then any party who is ready, willing and able to complete may then, or at any time after (but prior to actual completion) serve a Notice to Complete on the other party. Such a situation might occur when for example the buyer or his solicitor does not have all the funds needed on completion, or the seller is for some reason unable to vacate.

When a notice is served then completion must take place no later than 10 working days, excluding the day on which it was served (though be careful, the standard conditions of sale are sometimes varied in a special condition so as to reduce this period, particularly in the case of repossessed property). See 1.3 above with regard to the various methods of delivery of a notice and the assumed timescales involved. If the notice is served on the buyer and a deposit was not paid on completion then the full 10% deposit must immediately be paid, or if a reduced deposit was paid then the balance required to make it up to 10% must be handed over.

A seller is considered to be ready, willing and able to complete if he has vacated the property or is able to do so immediately (except where the property is sold subject to a tenancy), his solicitor is in possession of all the title deeds necessary to prove title together with an original signed transfer deed and he has complied with, or would but for want of the completion funds be able to comply with, all his other obligations under the contract. This includes being in a position to redeem any charges registered against the property and remove any restrictions, notices etc that he has agreed to remove.

A buyer is considered to be ready willing and able to complete if he has either paid over the completion funds or is in a position to do so but has not because the seller has not complied with his obligations such as vacating the property, undertaking to redeem and charges etc.

Some solicitors will include a special condition in their standard form of contract obliging the buyer to pay their fees in connection with the service of a Notice to Complete. A firm should not do this if it is accredited under the Conveyancing Quality Scheme (CQS) as such clauses are directly prohibited. If this clause does appear, and the buyer’s solicitor is not CQS accredited he should ensure that it is reciprocal in the event that a notice is served on the seller and that the fee is a fixed sum. The average seems to be around £75 - £150 plus VAT. Whatever the figure is, if the buyer is relying on a sale to fund his purchase he should ensure that the figure is the same in both contracts.

Although technically a notice can be served as soon as the contract time has passed (i.e. 2pm, or earlier if the standard conditions of sale are varied) it is generally only done where the delay means that completion is not likely to take place on the completion day. See sections 7.4 and 7.5 (below) for the remedies offered by the standard conditions of sale in the event that a Notice to Complete is not complied with.

7 Remedies

7.1 Errors or Omissions

If any plan or statement either in the contract or given in reply to any enquiry on which under the contract the buyer is entitled to rely is misleading due to an error or omission by the seller then where there is a material difference between the description of the property or any chattels as it is and as represented by the seller then the buyer is entitled to damages, for example if the seller states that the central heating is in working order but it is not then the buyer is entitled to damages.

The buyer is only entitled to rescind the contract (withdraw from it) due to an error or omission if it results from fraud or recklessness on the part of the seller or where in completing the buyer would be obliged (to his detriment) to accept a property differing substantially in quantity, quality or tenure from which the error or omission led him to expect.

If either party rescinds (cancels) the contract then, unless this is as a result of a breach by the buyer, then the deposit is to be returned to the buyer with accrued interest, the buyer is to return any documents received from the seller and any registration of the contract (i.e. a C(IV) land charge for unregistered land or a Notice for registered land) is to be cancelled.

7.2 Late Completion

Where either or both of the parties are in default and completion is delayed as a result then the party whose period of default is greater must pay compensation to the other party. That compensation is payable at the contract rate - that is to say the purchase price - (where the buyer is the payer) any deposit paid / 100 * the contract rate (usually 4% or 5% above the base lending rate of the seller's solicitor's bank account but the figure will be stated on the face of the contract) / 365, so if for example the base rate was 5.75%, the contract rate was 4% above the base rate, the purchase price was £100,000 and the deposit £10,000 then the daily rate of compensation would be ((£100,000 - £10,000) / 100 * 9.75 / 365 = £24.04. Any claim for damages resulting from late completion is to be reduced by any compensation payable under the contract.

This compensation must be paid along with the balance of the purchase price (or deducted from the price if the seller is in default) and the injured party is not obliged to complete unless it is. The same does not apply to a claim for damages.

7.3 After Completion

Any liability under the contract on either party which is not satisfied by completion shall not be cancelled by completion and shall continue until satisfied.

7.4 Buyer's Failure to Comply with a Notice to Complete

If, following a notice to complete, the buyer fails to complete within 10 working days or whatever revised period applies if the standard conditions of sale have been varied then the seller may rescind the contract and if he does so he may retain the deposit together with any accrued interest and may resell the property, and claim damages from the buyer. The buyer must return any documents to the seller and cancel registration of the contract. The seller is not obliged to rescind the contract and if he chooses not to immediately that the notice expires then he may do so at any time in future prior to the buyer being ready willing and able to complete (though care should be taken as a buyer might argue that “time was not of the essence” when the notice was served if the seller delays in rescinding). In the meantime interest continues to accrue at the contract rate. For the avoidance of doubt, any damages claim (other than interest under the contract) is reduced by the amount of the retained deposit, so that for example if the deposit is £10,000 and the total damages is £11,000 then the seller has to pay the buyer a further £1,000 (total damages less deposit). If the total damages are less than the retained deposit then the buyer does not have to refund the difference to the seller.

7.5 Seller's Failure to Comply with a Notice to Complete

If the seller fails to comply with a notice to complete then the buyer, on expiry of the notice or at any time thereafter prior to the seller being ready, willing and able to complete (subject again to the caveat re time being of the essence)  may rescind the contract and if he does so the seller must return the deposit with accrued interest and the buyer must return any documents to the seller and, at the expense of the seller, cancel any registration of the contract. The buyer may claim damages. If the buyer chooses not to rescind then interest continues to accrue to him at the contract rate.

8 Leasehold Property

8.1 Existing Leases

Provided that the full terms of the lease have been disclosed to the buyer prior to exchange (by the seller or his solicitor providing the buyer or his solicitor with a copy of the lease) the buyer takes the property subject to them. If the lease obliges the tenant to insure the property then the seller must do so until completion.

8.2 New Leases

A draft of the new lease must be attached (annexed) to the contract and the actual lease must be in the same form. Provided the lease is for a term exceeding 7 years then it must be registered at land registry, in which case the seller must deduce the freehold (and if applicable superior leasehold) title to the buyer and the title must be sufficient for the buyer to be able to register the lease with absolute title. If the freehold is registered this simply means producing Official Copies and if it unregistered it means producing deeds evidencing a chain of ownership going back at least 15 years. In fact, the title will (except for a property bought at auction) be deduced to the buyer prior to exchange. The seller is to produce two copies of the lease - an original and a counterpart. The original is to be signed by the seller and handed to the buyer on completion and the counterpart is to be sent to the buyer no later than 5 working days prior to completion. The buyer must then sign this counterpart and return it to the seller in time for completion.

8.3 Consent

If the landlord's consent is required to assign, let or sub-let then the seller must apply for consent at this own expense and use all reasonable endeavours to obtain it. The buyer is obliged to provide all information and references which are reasonably required. If, 3 working days prior to completion (or on some later date mutually agreed by both buyer and seller) the consent has either not been obtained or has been granted subject to a condition to which either party reasonably objects then the standard conditions of sale permit that either party may (unless in the seller's case he has not used his reasonable endeavours to obtain consent or in the buyer's case he has not provided information and references) rescind the contract. If they do so then neither party is considered to be in breach of contract and neither may claim damages from the other.

Commonhold Land

UPDATE: The section on commonhold land has been removed for the standard conditions of sale 5th edition.

9 Contents

Whether or not a separate price is being paid for any chattels (fixtures, fittings and contents) included in the sale, the following standard conditions of sale apply:-

  • The contract is to take effect as a contract for the sale of goods;
  • The buyer takes the chattels in the physical state they were in at the date of exchange; and
  • The buyer takes possession of the chattels on the date of actual completion (if this is later then the completion date in the contract).