I think solicitors have exchanged without my agreement

[Postapocalypticcowgirl]

I don't want to give too many details, as this may be outing but to summarise:

-First time buyer, put an offer in on this property in a few months ago. Sellers needed time to find somewhere to move to, I was quite patient with this. A few weeks ago, they found somewhere to move to, and suddenly there was lots of pressure to get everything sorted, even though it really wasn't an ideal time for me for various reasons. Still, I tried to get everything sorted with my solicitors as quickly as I could, and they also resolved an outstanding issue from searches.

-I was on holiday last week, and raised concerns around the time frame etc with my solicitors. I was told it would all be fine. I asked what I needed to have in place before I went away, and organised everything they asked for at this time.

-I was asked by my solicitors to come into the office today, to sign the last bits of paperwork. During the meeting, it wasn't mentioned that we'd be aiming to exchange today, just "as soon as possible".

-When I returned home, I had an email saying that if I had the remainder of my deposit available, then we could exchange today. I rang, and explained that due to some of the money being in an investment account, I'd need 24 hours to ensure funds have cleared in my current account etc. Solicitors said they'd speak to sellers solicitors, and ask to wait until tomorrow to exchange.

-I've had no further contact from my solicitors, but have had an email from the estate agents congratulating me on exchanging. I've called the solicitors and there's no answer, because I guess they're done for the day.

I'm really concerned that if there are any delays in clearing the funds, I'm going to become liable for interest on my deposit amount etc, even though I asked my solicitors to wait. I know I probably should have withdrawn the money before going on holiday, but I wasn't prepared for how quickly things would suddenly move- given I've been waiting months for this. Even in the middle of July, when I was asking if we could complete before the end of August, I was told that was a "possibility".

I know I've been a bit naive here, but surely my solicitors shouldn't have exchanged without written consent from me?

I'm in an absolute panic that something's going to go wrong, and I won't have the money available for Monday.

It’s more likely that the estate agents are wrong, but I also think you are getting mixed up regarding the deposit. You only need the 10% for exchange (which is, in essence, security for the seller that you will complete) and then the remaining 15% is due at completion, along with any mortgage amount.

I really hope you’re not a property lawyer, because that’s not correct.
Signing the contract in a residential
property transaction doesn’t legally commit you to anything. A solicitor will always want to confirm instructions on the day exchange is to take place.

I'm sure that each time that I have bought and sold, my solicitor has made a call to me and read out a specific statement asking me to confirm that I wanted to exchange.

Why would anyone require more than 10% deposit to exchange? You wouldn't just offer the seller an extra 15% security, surely? So if if you pulled out you would lose 25% not 10%.

So you mean that lyou will be paying 10% deposit on exchange and when you complete will do that with in total 25% cash and 75% mortgage.

Yes, I understand this- my point is that I may not have the 15% in my current account for completion.

If I can't complete on the suggested date due to lack of funds, then I'll incur additional charges, right?

Thank you to those who've suggested that I forward the email on to my solicitors. I've done this and asked for clarification.

Apologies, I read your needing 24 hours as the time needed to get the funds.

What date did you agree for completion.

I've had confirmation from EA before solicitors about exchanging, though I've always had a call from the solicitor asking if I'm happy to go ahead just before they do it, no matter what I've said or signed before - even earlier in the day!
As long as they had the 10% that's all they need to exchange.
You should not have agreed to such a tight exchange to completion date - it's a mutual decision, not dictated by one side or the other. Lesson learned for next time!

Solicitor will always check with you before exchanging, and will always let you know you've exchanged.

I'd be 99% sure you haven't exchanged.

And if you have, they've done so without your permission as you told them to delay, so I imagine if you're late completing, they can cover any fees?

@Mildura yes I am. Please read my post properly. I didn’t say that they should exchange contracts without express consent as that is certainly best practice. However, implied consent to exchange is given by signing the contract and remains until it withdrawn. There is no requirement under legislation or current case law that states consent is required on the day. If you believe I am incorrect please feel free to quote any evidence and I’ll happily concede.

Did you actually agree the completion date? Because given what you've said about the difficulty in getting the balance of funds cleared in time, I'd be very surprised if your solicitors exchanged and agreed a completion date on your behalf without your express consent.
I'd be firing off an email tonight telling them you haven't authorised exchange yet, and so you are surprised to hear from the agents that exchange has taken place and Can they clarify as a matter of urgency .
When they do clarify, you'd need to point out straightaway that if you incur additional costs you will want them to cover that if it turns out that they have exchanged without being aiuthorised.
It used to be best practice not to exchange without speaking to that client that day.. I don't know if that is still the case, but they certainly do have some responsibility here.

If you have exchanged I would expect your solicitor to call your afterwards or at least email you to confirm that, immediately. I don’t see how the estate agents would know before you.

It seems like a mix at timed

Have you ever used that implied consent to exchange @IOnlycreatedaccountforthispost ? I can’t think of any conveyancer who actually would.
We always ring to get consent for a specific period e.g. to the end of the working day OP. It’s followed up with another call to confirm exchange.
I don’t do exchanges any more but overhear colleagues all the time. They would be in a HUGE amount of trouble if they exchanged without express consent. I expect it’s the EAs being pushy.

Signing the contract gives implied authority but solicitors also need to obtain express authority, don't they?

Otherwise they are left vulnerable to negligence.

@MinnieMountain no, of course I would never exchange without confirming with the client first. That would be stupid. I was just making the (slightly pointless) point that it is best practice but not a legal requirement to do so. Whether the solicitor would be in trouble by the SRA doesn’t mean the client could rescind the contract if it did happen as they are different matters. I doubt they exchanged and agree that the estate agent was wrong….they often are 🤷‍♀️

It does sound like the EA is confused, fingers crossed OP!

@Dreadmilly in a decided case it was held that by signing a contract the client gave consent to exchange and that consent continued to exist until it was withdrawn. The solicitor exchanged contracts and I think the client couldn’t rescind the contract. This case was some years ago and I don’t remember all the details though so no idea if a completion date was agreed with the client or not or how long the solicitor had gone without contact with their client. Best practice in conveyancing is not necessarily the same as complying with legislation and case law.

Not very helpful for a member of the general public who is worried though eh? @IOnlycreatedaccountforthispost

@MinnieMountain oh sorry, I thought MN was a place we can give opinions and advice in response to questions? OP asked a question and I replied. Don’t see why I have to sugar coat the reply I decided to give🤣

Hi everyone, thank you for all your support with this. I obviously got myself into a bit of a panic last night about it all.

I've had an email from the solicitors confirming they haven't exchanged and they are waiting for me to let them know that the remaining money has cleared in my account so I'm ready to complete.

I guess it is a mistake from the estate agents and they got over keen.

Anyway fingers crossed we will be able to exchange today!

That’s a relief @Postapocalypticcowgirl good luck for exchange and completion and moving into your new home!

Thank you! The funds have now cleared, so hopefully we can exchange today or tomorrow, and still complete on the agreed day.

For me, it doesn't make much of a difference if the completion date changes slightly, but I think it matters to the sellers and I can always move in a few days later, as I'm paying rent on my current home until the end of August anyway.

Keeping fingers crossed everything will go smoothly now, and I haven't messed it all up!

Funds have cleared and now exchanged- thank you everyone who commented last night when I was panicking!

It's all worked out!