The conveyancing procedure in England and Wales can be daunting, especially if you are acquiring a property that may need to be specially adapted due to requirements of a disabled person’s specific needs, particularly if he/she is lacking mental capacity, and those of his or her family. To help explain the stages of the conveyancing process in respect of such a purchase, we have set out a brief guide below to outline the steps involved. In our other blog, our deputyship team also explains further some of the specific challenges involved regarding property adaptation, legal ownership and authority.
Once we receive the sales memorandum detailing the terms of the purchase, we will make contact with the Seller’s solicitor requesting a draft sale and purchase contract and supporting paperwork (including copy title documents).
Pre-exchange of contracts
- When we receive the draft contract and paperwork, we will submit the appropriate conveyancing searches, including a local search, drainage and water search and environmental search.
- We will negotiate the form of Contract and (if a new lease is being granted) the form of lease with the Seller’s solicitors and raise any necessary additional enquiries of the Seller and (where the property is an apartment) Managing Agents for the building resulting from our investigations and searches.
- We would recommend a survey and valuation be carried out on the property. We will liaise with the surveyor and review the survey report and raise any additional enquiries with the Seller’s solicitors arising from the survey.
- We will liaise with the Court of Protection Deputy on whether the property needs to be specially adapted and ensure there are no other restrictions that may prohibit this.
- If the property needs to be specially adapted, we will discuss with the Deputy whether the purchase should be made conditional upon obtaining planning permission. If the property is leasehold, we would also need to consider applying for landlord’s consent for any proposed alterations. Again, we would then need to discuss with the Deputy whether the purchase should be conditional upon obtaining landlords consent.
- If the property is a new build house or apartment off plan, we will need to make sure the property has the benefit of NHBC (National House-Building Council) Buildmark cover or other acceptable form of New Homes Warranty. In certain circumstances we may require a full pack of purchaser warranties from the professional team, main contractor and sub-contractors.
- We will report to the Deputy on the contract and title and deal with any queries they may have.
Exchange of contracts
- Before we proceed to exchange of contracts, the Deputy will obtain an order from the Court to confirm they have authority to proceed to exchange and complete the purchase of the property.
- If the purchase is for a child, and trustees are therefore acquiring the property for the child, we will ensure before exchange of contracts that an appropriate declaration of trust is in place to set out who the trustees are holding the property on trust for.
- It is normal to be expected to exchange contracts with the Seller prior to completing the purchase. On exchange of contracts, a 10% deposit is generally payable to the Seller’s Solicitors which they normally hold as stakeholder. Once contracts are exchanged, there is a contractual commitment to purchase the house or apartment. The completion date will be specified in the contract, which will usually be up to 28 days after exchange. In the case of a new-build purchase, completion will normally be triggered by the Seller serving notice that the new apartment or house is completed.
- We will carry out certain pre-completion searches, raise requisitions on title and completion arrangements with the Seller’s solicitors, prepare the form of Transfer (if applicable) for the Seller to approve and get signed. We will also advise in advance of the amount required to complete and liaise with the Deputy to obtain the funds from Court to acquire the property.
- Completion will generally take place on or before 2pm on the day of completion, whereupon the keys to the house or apartment will be released to the deputies.
After completion we will:
- Prepare a land transaction return (using Form SDLT 1 and any applicable supplemental forms) notifying HM Revenue & Customs (HMRC) of the transaction and pay any stamp duty land tax that is due.
- Apply for registration of the Transfer or new Lease (as applicable) at the Land Registry.