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Original poster

Exchange date - elderly seller

35 replies

PurplePansy05 · 20/01/2021 17:28

Hi All. I wonder if you could share your thoughts!

We are just about to buy a property from a very elderly seller (I mean 90+). We are discussing exchange and completion dates and my question is in respect of exchange.

DH and I are a bit concerned as to what might happen if the seller was to pass away between exchange and completion. Don't get me wrong, there is nothing obvious to suggest that, apart from the natural risk of his age and the pandemic of course.

Now, I read a bit about this and I understand should that happen after the exchange but before completion, the property would still have to be sold to us and a Grant of Probate would need to be obtained - how long does it take now?

I am guessing several months? This is where my query is. I am pregnant (due this summer) and we also have dogs and cats, as you can imagine we can't exactly move in to a rented property for several months right now, it would be v difficult to even find it. We probably would rather pull out completely even if we have to pay solicitor and agent's fees and stay put in our current house. I am very worried that for example we exchange and agree completion a week later and something happens in between leaving us with nowhere to go and with difficulties with finding somewhere suitable.

What would you suggest to do re exchange, agree it very close to completion to minimise the risk of any such difficulty?

What would the seller's estate liability be towards us as well if he was to pass away after the exchange?

Sorry, I know I'm perhaps overthinking things but I am genuinely worried! TIA Flowers

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Original poster
PurplePansy05 · 20/01/2021 17:30

And just to add, I have enquired with our solicitor and am waiting for her response, I just wanted to see if anyone else has been in this position and how you resolved it in practice. Flowers

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HapHap · 20/01/2021 17:43

Do you know if they have appointed anyone power of attorney?

Sadly the elderly vendor of a house we bought a few years ago passed away during the process but he had appointed a member of the family PoA and things were only held up a couple of weeks.

MrsGlitterSparklesHun · 20/01/2021 17:53

EpA/LPA becomes void on death. Think about it, how can you act as an attorney for someone who has died? You can't.

If you have exchanged then as the contact is legally binding the benefit/burden will pass to PRs (execs or administrators). If the seller is sole owner then Grant of Probate will be required which will cause substantial delay and likely delay past the agreed completion date. If joint owners and one dies then it will be different and depend on their ownership (joint tenants/tenants in common). Notice to complete will need to be served if the contract is to be rescinded.

If the seller dies before exchange/completion then same general principles I.e. GOP required, but as no legally binding contract, you could walk away from the transaction if you didn't want to wait.

Bottom line, exchange and complete ASAP! Ha

Original poster
PurplePansy05 · 20/01/2021 17:53

Yes! We were told there's a PoA in place (his nephew). I don't know which one, I can enquire if it's the financial affairs one?

That's very helpful @HapHap, thank you! Would you be able to let me know how things proceeded, what was involved?

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Hoppinggreen · 20/01/2021 17:55

As MrsGlitter says a POA Stops on death so that wouldn’t help you

Original poster
PurplePansy05 · 20/01/2021 18:02

Ok so would it be sensible to agree the exchange date just before completion, eg the day before or even on the same day?

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Original poster
PurplePansy05 · 20/01/2021 18:03

He is a sole owner, btw.

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senua · 20/01/2021 18:38

I am very worried that for example we exchange and agree completion a week later and something happens in between leaving us with nowhere to go and with difficulties with finding somewhere suitable.
Is there some sort of insurance policy available for this eventuality?

Original poster
PurplePansy05 · 20/01/2021 18:39

I don't know, @senua, I've never heard of it.

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senua · 20/01/2021 18:49

I've never heard of it.
But your solicitor may have. Or knows someone who knows about such things. Doesn't do any harm to ask if such a thing exists.

Original poster
PurplePansy05 · 20/01/2021 20:08

Bump, has anyone been in this situation please?

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TerryHearn · 20/01/2021 20:15

You have to exchange and complete on the same day. Could exchange then complete next day but there is still a risk. Did it recently. There is no insurance in place. Nothing else other than what I have set out.

Original poster
PurplePansy05 · 20/01/2021 20:27

@TerryHearn Ok, but that's a big risk of delays in itself, plus we don't know if the rest of the chain who are all over the place (England/Wales) would agree to this and if the lenders would agree too.

I really don't know if it's worth the stress, maybe we should just walk away, it's a much bigger issue than I thought and no easy solution.

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Isthisentirelynecessary · 20/01/2021 21:15

If I was in that situation I would exchange and complete on the same day (at the same time). I have done this a few times (not for this reason) and it’s always taken aaagees on the day and it’s been a mad dash to the agents to pick the keys up before they close, but at least there’s no chance of your nightmare coming true (get the insurance the removal company offers for if they have to stay past 5pm as otherwise it can cost you much more!)

Salome61 · 20/01/2021 21:18

You could ask for a Covid rider, which covers you if you are unable to complete on time because of an incident connected to Covid?

wowfudge · 20/01/2021 21:18

It's about the only time I'd want to exchange and complete same day. Coupled with the fact we're in a pandemic and you don't know what else could change at short notice - it's the obvious answer.

TerryHearn · 20/01/2021 21:19

[quote PurplePansy05]@TerryHearn Ok, but that's a big risk of delays in itself, plus we don't know if the rest of the chain who are all over the place (England/Wales) would agree to this and if the lenders would agree too.

I really don't know if it's worth the stress, maybe we should just walk away, it's a much bigger issue than I thought and no easy solution.[/quote]
It worked for us due to a short chain. Everyone agreed on it. It does put things at risk if things don’t line up on the day. However if you exchange and then get locked into a probate the financial downside is unthinkable at the moment due to stamp duty discount etc. No real need to walk away. We were advised that exchange and then completion the next day is nearly as good as if a death happened in between someone would still need to register the death and this is unlikely to happen quickly so the sale would get pushed through anyway.

Salome61 · 20/01/2021 21:20

Law society info, sorry couldn't edit previous post to add -

www.lawsociety.org.uk/topics/coronavirus/coronavirus-covid-19-sector-specific-guidance-conveyancers

Original poster
PurplePansy05 · 20/01/2021 22:06

Thank you all Flowers

To clarify, the covid guidelines aren't what I'm asking for, this isnta scenario whereby we're particularly concerned of covid, we're concerned the seller might simply pass away of any cause, eg natural causes. It sounds like we'll have to try and push through with same day e+c.

Thank you all.

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Lurkingforawhile · 20/01/2021 22:11

I used to be a lawyer buying land for development. I was asked by a client to put a clause in a contract to provide for this. It did not go down well with the seller so just a quick warning! Basically we provided that the contract would terminate if the seller died because the probate timescale didn't work with planning. Doesn't necessarily work with resi or if you're in a chain, but your solicitor should advise.

PowerslidePanda · 20/01/2021 22:34

Ok, but that's a big risk of delays in itself, plus we don't know if the rest of the chain who are all over the place (England/Wales) would agree to this and if the lenders would agree too.

Is your seller the last person in the chain? If so, the rest of the chain doesn't need to agree to it - they can all exchange in advance, including you with your buyers. So you'll complete on your sale that day regardless and as long as your seller hasn't suddenly passed away, you exchange and complete on your purchase on that day too.

The downside of that approach is that you need a back-up plan for if you can't, for whatever reason - e.g. if the vendor does suddenly die. So it's still risky for you - but you don't need to get the rest of the chain on-side.

Original poster
PurplePansy05 · 20/01/2021 22:47

you don't need to get the rest of the chain on-side
I think we sort of do though. If that's what we're gonna go with (exchange & completion on the same date on the property we're buying) then we need to do the same in respect of our sale - otherwise we become liable to our buyer for pulling out after exchange and before completion OR we have to vacate our house with nowhere to go anyway, and there is no contractual obligation for our seller to sell to us or to pay compensation. That's not a good position, is it?

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Original poster
PurplePansy05 · 20/01/2021 22:48

When I say for our seller to sell to us, I mean the seller's estate (assuming the worst might happen).

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MrsGlitterSparklesHun · 20/01/2021 23:30

Depends on his situation really, if he is ill or you have a genuine reason to be concerned (other than age) then simulaneous exchange and completion would be best. Still a risk he could die the day before you were planning this though, the only difference is you wouldn't be legally bound by a contract (as you would be if you had exchanged). If you still wanted the property (even though you hadn't exchamged) you'd still have to wait for probate. If you are just concerned because he is old then have a couple of days to a week between exchange and completion. Just carry out your own risk assessment, if he is generally fit and healthy for his age and wouldn't reasonably be expected to drop dead in a week I'd go with that then at least you have a week of security following exchange to make your own practical arrangements. I don't think it would be fair asking for a contract clause personally unless you have a genuine reason to be concerned. You couldn't really say 'I want a clause putting in the contract because your client is old and might die' lol. Well, you could, but it wouldn't be reasonable and will probably cause offence. There are other things to consider too with age like capacity. I.e. if he signed the contract now in readiness with a view to exchanging in a couple of weeks say and he had capacity to do that at the time, but then has a fall next week and is unconscious in hospital when you're wanting to exchange/complete, if he doesn't have a POA you wouldn't be able to proceed anyway as he will need capacity to give that authority at that time). No-one can completely future proof, I mean this in the nicest way possible but something could happen to you tomorrow which would change the transaction, just about risk assessing isn't it.

Original poster
PurplePansy05 · 21/01/2021 07:25

I understand that but this would be a very difficult situation for us should this happen and at over 90 it really wouldn't be hugely surprising so to me the risk is real. I can't have myself pregnant, DH and our three pets homeless at the 11th hour or have liability of thousands of pounds towards our buyer. I don't think that's OTT.

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