Conveyancing can be a complex process. Senior associate Lara Murrell discusses the importance of the Fittings & Contents Form.
An ancient (and redundant) iron water tank on the roof terrace of a property recently disrupted the completion of one of our client’s property sales. On arranging the clearance of the property in the days leading up to completion, it became apparent that due to the size and weight of the tank, it could only be removed via the use of a crane.
However, it was not possible to arrange a crane at such late notice and thus the question arose as to whether completion could take place notwithstanding the iron tank which remained on the roof.
In the usual way, the sale contract provided that the seller would hand over vacant possession of the property on completion.
What does vacant possession actually mean?
It means:
- making the property available on completion in a state in which the buyer can both physically and legally occupy it.
- giving the buyer the undisturbed enjoyment of the property.
It was arguable that the existence of the tank (being a single item on the roof) did not impede the buyer’s ability to occupy or use the property or otherwise affect their enjoyment of it and was, in effect de minimis. It was no different to curtains, carpets or other minor items that might get left in a house on a sale.
Understandably, however, given the complexities of having the tank removed, the buyer was not convinced by this argument.
Thankfully, the parties mutually agreed to delay completion while the necessary arrangements were put in place to get the tank lifted off the roof and, as there was no ongoing chain, the delay did not cause any loss or disruption to any other third parties.
This matter also reminded me of a transaction where a buyer discovered on moving into their new home that the seller had not only removed all the furniture, but every radiator, electricity socket and light fitting. In this case, the seller took a rather extreme view of their responsibility to give vacant possession.
These are rare examples, but how could these misunderstandings have been avoided?
The Fittings & Contents Form which is completed by the seller at the outset of the conveyancing transaction sets out the items and fittings that are to remain in the property at completion.
As the Fittings & Contents Form is part of the contract on exchange, should the items left at the property at completion not match what is disclosed in the form then a buyer has a contractual claim against the seller. In the example of the stripped out property, the Fittings & Contents Form requires certain fittings to remain in situ and as such, a buyer would (in principle) have had a potential claim against the seller for reinstatement.
Likewise, where there was no mention of the water tank on the Fittings & Contents Form, the seller has represented that this fixture would not be included in the sale and will be removed on completion. In this case a buyer could have a claim against the seller for costs and expenses incurred in having to arrange removal of the tank if it had been left at the property on completion.
In reality, it would likely not make economic sense to make such a claim as the cost of pursuing a claim would very likely outweigh the cost of reinstating or removing these items.
What can you do to try and avoid a vacant possession problem?
For sellers
- make sure you complete the Fittings and Contents Form thoroughly and accurately, and during a visit / inspection of the property if you can, so that you do not miss anything.
- Clear the property and book removals as early as you can before completion – do not leave this until the last minute in case there is an unexpected problem moving a particular item.
For buyers
- scrutinise the information provided in the Fittings & Contents Form and agent’s particulars and visit the property personally. If there is anything that does not match up with that you have seen or heard then tell your solicitor so they can clarify with the seller’s solicitor.
- If there is something particular you are worried about being removed flag this at the earliest opportunity. Better to flush out what is happening with it now rather than being caught out later on.
How we can help
Our conveyancing solicitors are here to help with all aspects of buying and selling residential property. The is well-placed to advise on all types of residential property transactions, from buying or selling the family home to arranging a lease extension or handling a remortgage. If you would like to discuss any of the topics above, please contact senior associate Lara Murrell, or a member of the team (44 (0)20 3826 7519).