Sadly, with the complexities of life and property transactions, and the fact that there is often a chain involved when buying and selling properties, one small hiccup can have consequences for everyone in that chain.

  • It could be that funds were not received from the mortgage provider in time.
  • It could be that a buyer or seller was unable to action something as quickly as may otherwise have been envisaged.
  • It may be as something as seemingly innocuous as a removal van turning up late to clear items from the property to enable vacant possession to be given on time.
  • It could be something as outrageous as a buyer demanding a discount to complete after exchange of contracts (yes, this has happened!)

Whatever the cause, by the time of exchange of contracts, a buyer and a seller will have agreed a time and day by when funds need to be transferred to complete the purchase. A failure to comply with that contractual term is a breach of contract.

What is the effect of this delay in completion?

This means, for example, a buyer towards the bottom of a chain who has remitted funds to their solicitor an hour too late, cannot complete until later than envisaged. The next person up the chain cannot complete on their purchase because they need the funds from the person below them in the chain who is buying their property in order complete on their purchase, and so on.

By way of example:

Ms Scarlett is buying Professor Plum’s property. Ms Scarlett remits funds to Professor Plum late.

Professor Plum needs those funds from Ms Scarlett to purchase a property from Reverend Green and cannot complete until he has them. He then delays in completing his purchase with Reverend Green.

Because Reverend Green needs the money from the sale of his property to Professor Plum, he cannot complete on his purchase of the property from Dr Black.

This will continue right up the chain and the losses that people incur can include additional storage costs or moving costs and hotel and accommodation costs, for example. However, it does not end here.

Because of the legal principle of privity of contract, only the parties to a contract have the right to pursue each other. This means Dr Black cannot seek her losses from Ms Scarlett. She has to pursue Reverend Green, because they have a contract together.

Reverend Green would then have to include the claim against him in addition to his actual losses, such as additional storage charges, in a claim against Professor Plum. Professor Plum would then have to include Reverend Green and Dr Black’s claims against him in his claim against Ms Scarlett, who was the person who caused the delay all the way up the chain.

What can be claimed?

Most property transactions take place pursuant to standard terms and conditions. We have focussed on the standard residential, as opposed to commercial, conditions of sale.

Under the standard conditions of sale, an aggrieved seller is entitled to claim interest at the rate specified in the contract on the purchase price, less any deposit paid, until completion takes place.

If that compensation is greater than the actual loss suffered (e.g. the interest is greater than the additional storage costs and any claim against them by their seller) then this is the most that can be claimed.

If the compensation is less than the actual loss suffered (e.g. the interest is less than additional storage costs and a claim being pursued against them by their seller) then the balance can be pursued.

It’s all a bit complicated, isn’t it?

Solicitors don’t make the law, they simply seek to apply it to the facts of any case. The reason why the principle of privity of contract exists is because the law has developed to say that, except in certain and very limited circumstances, only the parties to a contract should be allowed to enforce their rights or be pursued by the other contracting party for failing to perform them.

Sadly it does get a little fiddly, and what happens in these circumstances depends on a number of facts.

So what do I do if there has been a delayed completion?

There are some practical considerations to take account of but they will depend on the circumstances of any case.

For example, some parties may be willing to simply accept the loss, as they do not want the aggravation of pursuing it. Also, where you are in the chain may make a difference to what you do. The lower down the chain you are, the greater the potential that the claim against you would be larger.

If you are the buyer at the bottom of the chain (like Ms Scarlett) who, directly or indirectly caused the delay, you are probably best placed to agree a settlement with your seller (in our example, Professor Plum) as soon as possible. If the terms of that agreement are sufficient to do so (and careful wording should be considered) then it may be possible to exclude all future claims.

This would mean that if the buyer at the bottom of the chain (Ms Scarlett) settles the claim with the person above them (Professor Plum), then they cannot be pursued further. If the person at the top of the chain (Dr Black) has not yet put his or her claim to their buyer (Reverend Green), then it may be some time before it works its way down the chain and it would stop at the person above you, because you have contractually agreed with them not to be pursued further.

If you are at the top of the chain (like Dr Black), you have the luxury of being able to decide whether or not pursue a claim. For you, the losses may not be particularly high, as you do not have to worry about people above you bringing their claims.

If you are somewhere in the middle of the chain (like Reverend Green or Professor Plum), then the action you take may be dictated by the action taken by the person above you. As the losses tend to grow the further down the chain you are as the claims compound, generally the lower down the chain you are, the greater the risk that someone above you might want to claim their losses.

For all but the person at the top of the chain (Dr Black), agreeing a swift settlement with the person above you is best. This might be difficult, as the person above you might be waiting to see if the person above them intends to make a claim.

How can Cunningtons solicitors help?

We can assist in defending and bringing claims for breach of contract based on delayed completion.

However, much of the time, the value of the claim is comparatively low. This generally means that claiming your legal costs is not an option. We can generally offer fixed fees or fee caps for providing advice and liaising with the parties. Have a look at our Funding Your Claim page.

In terms of important things to remember:

• If it was you that caused the delay (whether this is your fault or not), try and settle the matter with the person above you as soon as possible and absolutely conclusively, so no further claims can find their way down the chain to you.

• If you are somewhere in the middle of the chain, don’t settle too early with the person below you. You want to be certain that the person above you is not going to pursue a claim against you before you agree to compromise your right to include their claim against your buyer.

• If you are at the top of the chain, you can pursue your claim at your leisure but be aware that the person below you in the chain is going to be reluctant to pay you your claim until they have received the same sum from their seller.

12 thoughts on “Delayed completion? That’s going to cost me a fortune!”

  1. Hi, I was notified by a voice message from my solicitor on 6th June, that they can confirm the completion date is 23rd June, everything is in place. One day before completion, they told me the buy solicitor is still waiting for the buyer’s mortgage company confirmation, so need to be delayed. Then I found out they haven’t even exchange contract yet!( I assume they did as they confirmed the completion date already without any other update, so I assume everything went well). They only exchanged contract on 25th June and delayed the completion to 29th June, which is very risky to meet the stamp duty holiday deadline.

    Can I ask my solicitor for compensation? I lost £125 for removal company cancellation fee/ deposit, and the delaying caused us inconvenience in work and life, as I have switched broadband services on 23rd, and had to book days off as cannot work from home without internet. All things have already packed so not convenient to live.

    1. Thank you for your comment.

      From what you have described, this appears to be a possible negligence claim but much will turn on the exact facts of the matter. Much will also depend on the content of the voicemail message left for you, and whether or not it was explained that completion would definitely be taking place on 23rd June 2021 or if this message was caveated or qualified in some way. For example, a clear contrast in position can be drawn if it was expressly stated in the message that you should make arrangements to complete and vacate by 23rd June 2021, as opposed to a message which suggested that this was only a proposed date and/or that confirmation might be provided later or your instructions required.

      The starting point for any professional negligence claim is to consider the retainer (contract) between the professional and person instructing them. In respect of a solicitor, it is normal for an initial client care letter and terms and conditions to be issued at the start of the relationship that explains the scope of the solicitor’s instructions and what they are going to do. Whether or not your solicitor has acted in your best interests and/or done what they were supposed to do depends on what they have explained to you in correspondence and what they actually did. For example, if you have simply instructed your solicitors to exchange and complete “as soon as possible” without specifying particular dates, then arguably, they have done what you have asked. It should also be remembered that your solicitors cannot force a seller to exchange contracts. If you explained to your solicitor that you wanted a contractually agreed completion date of 23rd June 2021 and they agreed an alternative date without instructions, then clearly your instructions have not been followed. It also strikes us that if your solicitors were informed that exchange and completion would be delayed at extremely short notice, they would not be able to communicate this to you until shortly after this date.

      Although considerably more complex, the basic position is that a professional can only be liable to their client for the losses that they cause. This normally involves asking what the position would be if the “correct” advice/steps had been given/taken. You seem to be suggesting that the solicitors should have exchanged contracts with a completion date of 23rd June 2021 sooner. As mentioned, this will depend on what your solicitors said they were going to do and what you asked/agreed with them to do.

  2. I purchased my property jan 2013 ,my deeds showed the boundaries where correct Iput my house up for sale march 2020 the sale has been going through since july 15th 2020 terms and conditions the sale should of gone through end of november, my solicitor informed me mid november the land at front of property does not belong to me ,my solicitor failedto find to find this Iam still waiting for the sale to go through .The same solicitor acted for me during the purchase and intended sale of my property,can i sue my solicitor. Mr S. Walker.

    1. Thank you for your comment. Normally this would be a type of work we could deal with, however, I note that the original purchase in which the solicitor made the mistake you are seeking to claim over was in 2013. The limitation period for professional negligence claims is 6 years from the date of the negligent act, or three years from the date of knowledge of the negligent act, so my concern is that this may already be statute barred. Time begins to run in the latter case from when you first knew, or could reasonably have known, about the act or omission giving rise to the negligence claim.

      If that turns out not to be the case, then there may be a case there but we would have to investigate fully the circumstances in the light of the current conveyancing file you have with this solicitor and the file from the previous transaction in order to determine the prospects of success.

  3. Hi,
    I have a slightly different question…
    Are any compensations paid by the developer for new build taxable? and whether this is regarded as income tax or CGT?

    Thanks

    1. Thank you for your comment. Unfortunately this is not something that we would be able to provide even general guidance on. As solicitors we do not give tax advice. We would recommend that anyone that wanted tax advice should seek the input of a suitably qualified accountant.

  4. I exchanged contracts and a completion date was set for the following week – the evening before completion my solicitor called me to say she had received the mortgage funds but had received a phone call from the sellers solicitors advising completion would not be taking place as they had omitted to get the necessary legal paperwork for the sellers Help To Buy redemption and so were not legally able to complete – my solicitors served notice and i have been told the sellers solicitors have 2 weeks to complete before they are in breach of contract – surely they are already in breach as exchange occurred with a set completion date. am i entitled to claim any costs? my solicitors have kept the mortgage funds as waiting for the sellers solicitor to be in a position to confirm when we can complete – there is also a chain of 5

    1. Thank you for your enquiry, however this should be addressed to your current conveyancing solicitor who has the benefit of the Contract in front of them and can properly advise you of your remedies against the Seller.

  5. I’m the cash buyer. We had the survey and the valuations and instructions etc a month ago on Feb 3. We were hoping to close on March 6. The sellers have already moved out. The sellers solicitors have been very slow taking 2 weeks in responses and in inquiries and hadn’t started the paperwork until mid Feb and we instructed our current landlord that we would be moving out. What can I do? What should I expect? We paid 25,000 over asking, we weren’t the highest bidder according to the estate agent (no proof of other bidder though) but the house was never registered.

    1. Thank you for your enquiry. It sounds as though you already have your own conveyancing solicitor, and so you should direct your questions to your own solicitor initially. If there is no binding contract between the parties as you have not yet exchanged, then there is no basis for a claim against the seller. We do recommend you speak to your own solicitor as soon as possible to weigh up your options.

  6. Hi

    The buyers solicitors are delaying the completion, they have been very slow in responses, which has cost me a loss of over 2 k on interest charges on a freehold vacant property. There is no chain involved. Can I claim compensation for this loss.

    1. Thank you for your comment. You should consult with your current solicitors with respect to the service of a notice to complete, so far as exchange has taken place. They should also advise you on the position with respect to remedies available under the contract of sale.

      If exchange has not taken place, then it is very unlikely that there is any basis to claim your losses from the buyer.

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