Property Conditions

What is the impact of the condition of the property?

When you receive entry to the property which you are buying, the contractual position is generally that the property should be in the same condition as when you viewed it "fair wear and tear excepted". What does this mean? Firstly, it is worth recalling that buying a house is not like buying a piece of equipment from a shop where there are lots of statutory rights. There are few rights when buying a house other than limited contractual ones. So, if the property has not been properly cleaned before the seller has vacated, it may be annoying, but it does not give you any legal rights. If something is scratched or broken, the damage has to amount to more than £300 before you have any legal rights. So, if some bulbs are missing or the garden is messy this is just part of the joys of house purchase.

It is quite often the case that when you first enter a property which you have bought, after all the furniture etc. has been removed, the condition of the property can be quite a disappointment. Defects that you did not see or test when you viewed the property are now obvious. Common concerns are windows that do not open properly, doors that do not close properly and other similar matters. Generally speaking you will have little or no rights in respect of such relatively minor matters.

One aspect which is covered in the contract is the condition of the central heating system and any other items that are included of a working nature such as kitchen appliances. Unless the provision has been altered during the course of the negotiation of the missives, in which case the issue will have been discussed with you, the central heating and other working items should be in the same condition as when viewed and in such working order as is commensurate with their age and type. Accordingly if a central heating system is 25 years of age and it does not work very well there is probably very little that you can do. However, if it is a brand-new central heating system and you ascertain when you move in that it is not working you are likely to have redress. Remember the £300 minimum claim also applies to the central heating and other working items.

Matters to look out for when you are selling

Try to avoid problems before they happen - moving house is extremely hectic; it is often the case that you are unable to leave the property in as clean a condition as you would wish. It is a tense time for the purchaser as well and it is a good idea to text, e-mail or telephone the purchaser leaving them a note explaining that you ran out of time and apologising that you are not able to clean the property as much as you had wished.

Matters to look out for when you are purchasing

Generally speaking you only have five working days in which to intimate defects and accordingly you must test the central heating and working items as soon as you move in.

You, the Home Report and your rights

One factor that is similar to both (a) the creation of contracts (or missives) for house purchase and sale and (b) the Home Report is that both are mechanisms created for market requirements. They are generalised arrangements and are not guided by your individual requirements or specifications. What does this mean? Essentially to ensure that conveyancing and Home Reports are both economical and meet common standards, certain assumptions are made.

A review of the small print of the Home Report reveals to the reader just how limited the obligation of the surveyor is to the user of the report. Effectively, the home report would only entitle a remedy to someone who has relied upon that report in the event of something very significant not being reported. Accordingly if it was clear that a house was visually unstable, and this had not been picked up in the home report then someone who has relied upon the home report, may well have a claim against the surveyor. However if a surveyor has not picked up a spot of damp that was behind a cupboard then there would be no claim.

Accordingly, if you are buying a very old property, a ramshackle property or one where repairs may be very expensive (such as a listed building) then the wise decision is to obtain a more in-depth survey in addition to the Home Report. The Home Report is a valuation and condition report not a full survey.

Resolving Disputes: The Missing Guide

Disputes: what is covered within your fee

If there is a dispute about the condition of the property that you are buying or selling, your legal fees quotation does not include dealing with any dispute. Whether we are acting in the purchase or a sale, generally speaking, we will deal with the initial raising of the matter and one exchange of correspondence. If there is to be a further or elongated dispute we require to make a further charge. There is a minimum charge of £200 and accordingly it is only worth pursuing such claims if there is (A) a genuine possibility of success and (B) the claim is for a fair amount of money. Remember that there is a £300 minimum contractual amount under which no claim can be made. Where at all possible, it is better to resolve these matters directly with the other party.

The interaction with the contract (or missives)

Similarly, conveyancing solicitors adopt "standard clauses" to assist the effective completions of contracts. The standard contract means that the property should only be in the same condition when viewed by the purchaser, fair wear and tear excepted. Only items of an electrical or working nature are excluded from this general approach but, even there, the items would only be in such working order as you might expect given their age and type.

If there is some aspect of the condition of the property which a client feels is particularly important to them then it is necessary to raise that with the conveyancer in advance of the completion of the contract. But remember it takes two to tango and the seller needs to accept this responsibility, which they may be unwilling to do.

Even if there is a dispute following the date of entry, ultimately the only mechanism by which that can be resolved is by a court action. In other words, even if a purchaser feels that they have a valid claim, if the seller does not agree, then the purchaser requires to take the seller to court to prove the claim. There is no magic bullet. Experience dictates that if the parties do not agree a claim quickly following intimation of that claim then it is not likely to be resolved other than by resorting to the courts. Unless a purchaser is willing to take the matter to the Small Claims Court or a superior court (if a large amount of money is involved), the cost of making a claim can be prohibitive.

Accordingly, it is best to approach these matters with low expectations. Everybody is different and, for some people, if they feel that they have a claim, they will wish to pursue it come what may. The problem is that once a court action has been commenced then there can be costs even if that action is abandoned; what might have seemed a good idea three months previously can often seem a bad idea at a later date. The job of the conveyancer is to provide practical and experienced advice. On occasion that will not be advice that is always welcomed but it should be considered very carefully.

Some practical points

Unless it is an emergency such as broken pipes, the purchaser of a property cannot instruct works at the cost of a seller without intimation of a claim and an often tortuous process of both sides obtaining estimates and reports. If you are a purchaser as soon as you move in you should test the items covered in the contract because you generally only have five days to intimate a claim.

Unless an issue of real emergency the seller has the right to fix the defect if there is a valid claim. This can be a frustrating process all round and nobody should expect a speedy outcome. Purchasers should use the claims process with great care having regard to the extent of the problem and the ability to await a satisfactory outcome.