Deadlines to exchange contracts from receipt of ‘contract papers’

02 May 2013

Conveyancing solicitors are often faced with deadlines that have been imposed on their clients to exchange contracts within a particular timescale. Typically from developers selling newly constructed properties, and generally when a seller is keen to secure an exchange of contracts in a situation where their property is actually generating quite a level of interest and it is a way of testing who is the strongest and most proceedable buyer.

But what does ‘contract papers’ mean? In an action sale, it means a pack sufficient in itself to enable a buyer to exchange contracts literally on reading it. No additional information or enquires of the seller should be needed. The auction pack will also include searches (or at least should but many sellers have legal representatives who fail at that and surely cost their own clients an otherwise few additional bidders). However, this is the ideal. In reality, normal contract papers in any other setting would not include searches. So do we have our definition? An auction pack without searches? No.

The reality is that this is what it should be, but the quality of the conveyancing solicitors will confuse the definition in many instances.

As a bare minimum, contract papers should include – and as any Conveyancing Quality Scheme (CQS) accredited solicitors firm will know from the Law Society’s Protocol – the following:

  • A draft contract
  • Consideration of sending a draft Transfer (many conveyancing solicitors now do this to keep deals moving promptly forward)
  • Copies of the registered deeds (or unregistered deeds)
  • Copies of the documents referred to within the registered deeds, including the lease
  • In the cases of leasehold properties, a management information pack usually produced/supplied by the Landlord or it’s representative
  • Council consents for works carried out to the Property
  • The Seller’s Property (and Leasehold if applicable) Information Form
  • The Seller’s Fittings & Contents Form

If all these apply in a situation, failing to supply even one means the buyer does not have a full set of information, and ‘contract papers’ have not been supplied. But many seller’s conveyancers will consider (or certainly argue) that contract papers have been supplied even if they are missing. Strange when they contain potential information, to lead the buyer to raise 100 and 1 questions for additional paperwork. Usually this is to mask inefficiency. This is frequently the case where selling conveyancers fail to even read their own client’s replies to the Property Information Form – which is not the best drafted questionnaire admittedly in asking questions but no follow on space to make it clear that documents in support of affirmative answers should be included – storing up delay as the buyer will read it and spot that documents support have not been supplied.

As a result, despite being given a set period within which to exchange from receipt of ‘contract papers’ it will be frequently be the case that most of the window will be eaten up by the buyer’s conveyancer simply chasing the seller’ conveyancer for what is still missing rather than having a window to calmly but promptly consider all papers.

But it need not be. A maximum window could be given depending on the quality and organisation of the seller’s conveyancing solicitor who plays the critical role in the whole definition. Choose yours wisely.