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Ozzie Osmond

Original Poster:

16,221 posts

132 months

[news] 
Thursday 21st June 2012 quote quote all
I know that when you sell a house binding contracts are signed at "exchange" and then a few weeks later official transfer documents are signed at "completion" when the money is paid and keys handed over.

Question: What happens if you die between exchange and completion?

  • Does the contract fall away because it's impossible to complete?
  • Does the contract remain in place and eventually get completed by the executors?
  • Would the executors have to wait for a grant of Probate before completing the sale?
  • What if there's a long delay before Probate is granted so completion is delayed? Is the seller's estate liable for any costs/expenses which the buyer suffers due to breach of contract?
Any guidance from the PH community will be much appreciated?

Magic919

9,389 posts

87 months

[news] 
Thursday 21st June 2012 quote quote all
I'd stick this post in the legal section I think.

My opinion is that it'll be binding on the Estate, but you should expect to be delayed. IANAL.

Ozzie Osmond

Original Poster:

16,221 posts

132 months

[news] 
Thursday 21st June 2012 quote quote all
Errrm, is there a legal section? Wasn't sure where to begin. Thanks for your input though.

Magic919

9,389 posts

87 months

[news] 
Thursday 21st June 2012 quote quote all

New POD

3,851 posts

36 months

[news] 
Thursday 21st June 2012 quote quote all
Ozzie Osmond said:
I know that when you sell a house binding contracts are signed at "exchange" and then a few weeks later official transfer documents are signed at "completion" when the money is paid and keys handed over.

Question: What happens if you die between exchange and completion?

  • Does the contract fall away because it's impossible to complete?
  • Does the contract remain in place and eventually get completed by the executors?
  • Would the executors have to wait for a grant of Probate before completing the sale?
  • What if there's a long delay before Probate is granted so completion is delayed? Is the seller's estate liable for any costs/expenses which the buyer suffers due to breach of contract?
Any guidance from the PH community will be much appreciated?
My guess as a manufacturing engineer. Exchange means the deal is DONE. Completion Means the documents and money are handed over.
If the deal is done, the dead person has made a bidding contract and it should go through.


But I'm guessing.

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Paul Drawmer

2,967 posts

153 months

[news] 
Friday 22nd June 2012 quote quote all
Is this a hypothetical question, or is this actually happening?

If it's the latter, then ask your legal adviser, they should know.

mattdaniels

6,377 posts

168 months

[news] 
Friday 22nd June 2012 quote quote all
Exchange of contracts means the deal is done. Both sides are committed to the transaction at that point and cannot back out. But IANAL, if this is happening to you, get some legal advice.

Sidepoint - it is possible to exchange and complete on the same day.



NDA

11,341 posts

111 months

[news] 
Friday 22nd June 2012 quote quote all
The estate would lose the 10% deposit and be open to being sued for breach of contract and the damages/loss incurred by the vendor.

I would also think that the illness and potential to default on the transaction would be a material fact which should be disclosed to all parties at the outset.

RYH64E

4,972 posts

130 months

[news] 
Saturday 23rd June 2012 quote quote all
New POD said:
My guess as a manufacturing engineer. Exchange means the deal is DONE. Completion Means the documents and money are handed over.
If the deal is done, the dead person has made a bidding contract and it should go through.


But I'm guessing.
Would a mortgage company agree to transfer funds knowing that their customer was dead? Without the transfer of funds the deal couldn't go ahead, surely? It's been a long while since I took out a mortgage, but would life assurance be an integral part of a mortgage deal and would it be in place from exchange of contracts?

I guess that this situation arises fairly often given the number of houses bought and sold per annum, someone will know the answer.

Ozzie Osmond

Original Poster:

16,221 posts

132 months

[news] 
Saturday 23rd June 2012 quote quote all
Thanks for the input guys. The position seems to be this,

  • Seller and seller's estate are bound by the signed and exchanged contract so there is an obligation to complete in 28 days.
  • At the supposed completion date there's no-one who CAN complete so it can't happen. It will be some months before a grant of Probate is given to the executors.
  • Once the executors have a grant of Probate they can go ahead and complete, if the buyer is still around.
So in other words, it's all pretty chaotic with various options available as to what to do. See below,

"The practical problem may be that the buyers have contracted to sell their own property and they can be compelled to complete the sale by their buyers even though they are unable to complete their purchase due to the death of the seller. So a practical step which may be taken is for the executors to allow the buyers to move into occupation of the property while waiting for probate.

"The buyer may not be prepared to wait. He is entitled to terminate the contract, which he can do after service of a notice. The notice is to make "time of the essence" of the contract. The normal arrangement is that although a completion date is written in the contract, time is not of the essence of it. This means that the contract cannot be terminated just because the seller (or the buyer for that matter) fails to complete on the day. The aggrieved party has to serve notice making time of the essence. The contract normally states that that time will become of the essence at the end of a two-week period, or less if stipulated in the contract. At the end of that period, the aggrieved party can terminate the contract. If the buyer serves the notice, then the deposit must be returned to him."



GT03ROB

3,190 posts

107 months

[news] 
Monday 25th June 2012 quote quote all
Surely the contract is frustrated if one party dies between exchange & completion?

Ozzie Osmond

Original Poster:

16,221 posts

132 months

[news] 
Monday 25th June 2012 quote quote all
Apparently not. The estate remains bound by the contract as an obligation of the deceased. Just like the gas bill etc.

amirzed

1,084 posts

62 months

[news] 
Monday 25th June 2012 quote quote all
my limited legal knowledge would suggest frustration, same as if the property was suddenly found to not belong to the seller.

in any case i doubt much will happen, courts and legal fees are extortionate for this sort of thing

Ozzie Osmond

Original Poster:

16,221 posts

132 months

[news] 
Tuesday 26th June 2012 quote quote all
What you suggest implies that it is impossible for an "estate" to own property at all after death - in other words that death frustrates the whole concept of ownership. That doesn't sound right to me. Contracts will surely survive death (like the gas bill) unless frustrated by impossibility of performance -for instance it would be no good Michael Jackson's executor turning up on stage to do the concerts!

Jobbo

8,706 posts

150 months

[news] 
Tuesday 26th June 2012 quote quote all
A contract for the sale of property is an interest in land, so it does of course survive death. Whether it can be complied with by the seller is a different problem. The buyer's solicitor should protect the contract by registering a notice of it at the Land Registry, just in case the executors aren't aware of it.

I've never actually dealt with this situation in practice but an old colleague did, and managed to push through completion on the contractual completion date. However, I think that is the exception rather than the rule because completing a house sale is generally not a massive priority for the family of the deceased, and there are really few penalties for a seller breaching the contract. Communication between the parties and between lawyers is key.

JR

9,279 posts

144 months

[news] 
Tuesday 26th June 2012 quote quote all
I don't see what the problem is here.

Normally the house would be sold by an estate agent who has the keys. When it comes to completion day the buyer's lawyers pay the seller's lawyers the remainder of the money and the estate agent hands over the keys to the buyer on the instruction of the seller's lawyers - the seller is not involved whether dead or alive.

Jobbo

8,706 posts

150 months

[news] 
Tuesday 26th June 2012 quote quote all
JR said:
I don't see what the problem is here.

Normally the house would be sold by an estate agent who has the keys. When it comes to completion day the buyer's lawyers pay the seller's lawyers the remainder of the money and the estate agent hands over the keys to the buyer on the instruction of the seller's lawyers - the seller is not involved whether dead or alive.
The seller has to sign the transfer deed. If they don't, the buyer doesn't acquire legal title to the property. If the buyer is buying with a mortgage, the mortgagee won't be protected if they're not on the title - in which case they won't advance the money.

DS3R

969 posts

52 months

[news] 
Tuesday 26th June 2012 quote quote all
I am confused as to who has died here-

If you're talking the seller, then if the seller dies between X & C then the contract is frustrated as it cannot complete.

Probate would then need to be established to move forward in either direction.

If the buyer still wanted to buy, probate would need to be established to prove that the seller (the beneficiary(ies)/ Crown in the case of no beneficiaries) had legal entitlement to sell. The presence/ otherwise of a will setting out what is to happen may have an impact on the time to achieve this.

If the Probate Registry is made aware of the real possibility that damages could be awarded against the estate (because of delayed completion), they can issue an expedited grant (i.e. one which is processed more quickly than normal). It may be the case that once the other side (and possibly others in a chain if applicable) know of the seller's death they may be willing to postpone completion in the knowledge that an expedited grant is forthcoming and everything will still fall in to place.

It is also possible to be creative, I have heard of the Probate Reg letting a buyer take possession on the planned completion date under licence whilst postponing actual completion until probate is complete, meaning if there are others in a chain who are 100% reliant on retaining the previously agreed dates, moves can still happen. Naturally this is complex and may require co-operation up & down a chain and from lenders.

scenario8

3,806 posts

65 months

[news] 
Tuesday 26th June 2012 quote quote all
In the case of a chain it is most likely (but not certain) that no onward purchase would be made. The parties "above" expecting the chain to have moved and not being able to make their purchases without funds from the deceased would have had a claim on the deposit, wouldn't they? In that case, were the cahin to continue with further links above, would each of those parties not all try to claim the deposit from the partyy below? Quite a nice earner by the time you get to the top of that chain, no?

Further the party that expected to be moving into the now deceased person's home, would they not be in danger of failing to compy with their own contract to sell if they did not complete on their own sale (on the basis they were unable to complete on their purchase)?

Messy.

It's never happened on my watch. Long may that continue.

Jobbo

8,706 posts

150 months

[news] 
Tuesday 26th June 2012 quote quote all
DS3R said:
If you're talking the seller, then if the seller dies between X & C then the contract is frustrated as it cannot complete.
The seller being unable to complete does not frustrate the contract in the legal sense of frustration; if the administrators do not apply for an expedited grant of probate in order to complete in accordance with the contract, then it is breached by the estate but not frustrated.
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