What is “Exchange of Contracts”?

15 Dec 2015

by Helen Thring

The buying and selling of your home may be the largest financial decision of your life. It’s therefore important that you receive the best advice both in terms of the home’s worth and marketing, but also during the legal formalities, known as conveyancing.

If you are buying or selling a property that is subject to a mortgage then you will be required to employ a qualified solicitor or licensed conveyancer to handle the legal process. In any event, it would be sensible to do so.

The Laws of England and Wales (Scotland has different regulations) require that the contract for the sale of land (including buildings) must be in writing, include all the terms for the sale and be signed by the parties involved. Furthermore, all sales, charges, certain leases and other rights and obligations must be registered with the Land Registry.

The legal representative handling the sale or purchase will deal with the paperwork, but you will be responsible for the obligations contained within the agreement, so it is important that you understand the process.

Once a sale has been agreed (subject to contract), the buyer and seller will instruct solicitors to act for them. The seller’s solicitor will usually send a standard contract for the sale, together with any additional terms agreed between the parties, to the buyer’s solicitor. In the meantime, the buyer’s solicitor will make sure that their client is in funds and able to afford the property. It is usual for the buyer’s solicitor to also act for the buyer’s lender at the same time. This will mean checking that the buyer has a valid mortgage offer and acceptable valuation report and that any local searches are properly performed. He will also check that all the sums required for deposit, stamp duty and fees are paid into a client account before exchange.

It is worth noting that until there has been an exchange of contracts, either party can usually withdraw from the agreement without penalty. However, once there has been an exchange of contracts both parties are legally obliged to fulfil their obligations under the contract. If, for example, the buyer fails to pay the purchase monies at the agreed time the seller may decide to retain the buyer’s deposit, sell the property to another third party or even sue the buyer for breach of his contractual liabilities. Likewise, the buyer might force the seller to sell to him under the terms agreed.

In many cases these days, the exchange of contracts and completion of the sale (the actual payment of monies and handing over of the keys) happens at the same time. This does not have to be the case and it might be prudent to agree for completion to take place two to four weeks after exchange of contracts so that removal services can be booked with more certainty. Last minute hitches at exchange can cause added hassle and expense if the completion day needs to be postponed!