When you are buying and selling property, the legal process where the title or ownership of property transfers from the seller to the buyer is known as conveyancing.
Freehold and leasehold conveyancing
When buying and selling property (moreso when buying) one of the first things to consider is the tenancy of the property. Is it freehold or leasehold?
What is the difference between freehold and leasehold?
If you buy a freehold property, you own the property outright, including the land it is built upon. You become the ‘freeholder’. With leasehold, you lease the property from the freeholder. You often have to pay an annual ground rent to the freeholder or management company. When the lease ends, ownership of the property reverts to the freeholder.
Freehold conveyancing is usually more straightforward and your solicitor will be able to set out a reasonable approximate timescale for completion. Leasehold conveyancing can be more complicated.
The conveyancing process begins when an offer is accepted on a property. If you’re not a First Time Buyer, you will probably be buying and selling. First Time Buyers might be making use of the government’s Help to Buy scheme to part-fund a purchase.
Do I actually need a solicitor?
Lenders will not deal with individuals, so if you require or already have a mortgage you will need to instruct a solicitor to deal with your conveyancing.
Buying a property
If you instruct us, we will provide you with our Terms of Business. This document states initial information including who will deal with your case and what our charges are. Once this is signed, we will contact the seller’s solicitor and inform them that we are acting for you. We’ll ask for the draft contract, title information and forms related to the property.
We will inspect the draft contract and documentation and go through it with you. This would be the time to check the tenure of the property is what you think it is. In the case of purchasing leasehold, check the lease length, any covenants, service charge and rent provisions. We will ensure you are happy with all arrangements and will raise any enquiries with the seller’s solicitor.
Next, we will conduct property searches. These searches reveal information about the property and surrounding area that you might not be aware of. This includes previous use, land contamination and local authority planning decisions.
In order to avoid problems later on, it is essential arm yourself with as much information about the property as possible before committing to the purchase. Searches are services provided by third parties so they all carry a charge.
Property valuation and Survey
We will go through the terms of your mortgage offer. Your lender needs a property valuation done on the property you are purchasing because they need to know that the property provides enough security for the mortgage. Sometimes you have to pay them for this but sometimes they include it in your mortgage deal.
You could instruct a surveyor registered with the Royal Institute of Chartered Surveyors (RICS) to carry out a full structural survey of the property. Some lenders allow you to ‘upgrade’ their basic valuation to this. This will provide reassurance that the house is sound, but may reveal the full extent of any work needed on the property. The potential for costly works can be used to negotiate with the seller; they might drop their price or might do the work themselves. Only about a fifth of purchasers instruct a surveyor, but the cost of not doing the survey can be many times that of doing one.
Once negotiations over the contract have been finalised, you and the and seller will sign an identical copy. These contracts will be exchanged by the solicitors involved, making the contract legally binding. You will have negotiated a completion date which will be shortly after exchange. We’ll register an interest in the property at the Land Registry. Normally your deposit is transferred to the seller’s solicitor at this point. If you pull out after exchange, you will lose this deposit and could be sued for breach of contract.
At completion, we will pay off the balance of your mortgage with the monies from your buyer, and will transfer the balance of your purchase funds to the seller’s solicitor. We will settle the Stamp Duty Land Tax due and register you with the Land Registry as the owner.
If we are acting for you in a sale, we will provide you with our Terms of Business containing details of your solicitor and our charges. Once you receive a formal offer for your property you’ll need to complete various forms. These forms are necessary for you to provide information to the buyer about the property. The information you must provide is wide ranging: from documenting neighbours from hell to detailing fixtures and fittings to identifying where the keys will be available for collection upon completion. You must complete the forms truthfully; if you mislead the buyer, they could sue you.
We will draw up the draft contract and send it along with the completed information forms to the buyer’s solicitor, who will raise queries on it. Elements such as the completion date and any fixtures and fittings details can be agreed. Negotiations relating to the buyer’s survey can be resolved.
Once everyone is happy, contracts can be exchanged. This enters you into a legally binding agreement with the buyer. The buyer will transfer their deposit into our bank account. You will still own the property until the completion date.
On the completion date we will receive the balance of the money owed from the buyer’s solicitor. We will use this to pay off any lending on the property and to pay the estate agents. If you are also buying we will use the remaining funds towards that. If not, we will pay them out to you.
Buying and selling
If you are moving home, you are likely to be buying and selling property, which poses its own challenges. A chain might be involved, for instance.
A chain is a linked list of property transactions that all depend on each other in order for any of them to complete. For instance, if the seller of the property you are buying needs to find a new property of their own, they won’t complete on a sale to you until they have made these arrangements. Similarly, your buyer may need to find a buyer for their own property before they can buy yours.
These chains can go on and on and if any of the transactions in the chain fall through, none of the transactions can complete. Your property solicitor will negotiate with you and your buyer or seller’s solicitors in order to come to a completion date that is agreeable with everyone.