Conveyancing in Today’s (Covid -19) Market
A market slowdown is inevitable because official guidance is that
“Home buyers and renters should, as far as possible, delay moving to a new house while emergency measures are in place to fight coronavirus”
It goes onto say that:
“Anyone with symptoms, self-isolating or shielding from the virus, should not move house for the time being.”
Thereby styming many would be deals. and social distancing rules made valuations and viewings virtually impossible although the virtual tours of some properties are being advertised on some estate agents websites , but in effect, the housing market is now frozen and in a state of stasis.
If you’re acting for someone who has exchanged contracts and If you have has a completion date within the next few days, and you, your client and the other side are able to proceed, there’s currently nothing to prevent you doing so, providing obviously you can find removal firms willing to proceed.
Since lockdown began, agreed transactions have dropped by 92pc Zoopla says the market is “in suspended animation” and demand from new buyers has fallen by 70%. As a result it expects the number of sales over the course of the year to be half of 2019’s figure.
The key issue is to point out as many of the likely risks as you can to clients as forewarned is forearmed.
You’ll want to assess the clients’ appetite for risk, set out the options and likely consequences for each option and establish whether your client wants to proceed and, if they do, how they want to do this. This is particularly important when your client is part of a chain and others in the chains appetite for risk can be less or more and difficult to estimate.
Therefore, their expectations, assumptions and responsibilities of the relevant parties must be taken into consideration.
It’s important to:
- explain all risks
- confirm advice in writing
- make sure the client acknowledges having had the advice in writing
Time and patience are not always in quantiful supply in conveyancing..
People often get desperate having lost out on certain properties previously or this being the property they want for key reasons. There are not other identical properties available or not at the same price.
Furthermore, peoples mortgage deals can expire, and they may not be able to get the same deal again. Few people, unless they are downsizing, can afford to purchase particularly in the capital and South east without a mortgage.
Speaking to a mortgage broker who explained that many of the mortgages on offer pre Covid by big names such as Santander and Virgin have been removed completely from the market and severely reduced the size of the loans they are willing to make. Post Covid 19 will these loans come back onto the market it is anyone’s guess.
Constant Drivers- The Three D’s
There are always certain drivers in the housing market even in these uncertain times- the three D’s are: death, debt and divorce and indeed all three may go up after the lock down is lifted. The housing market may get busier, but a lot of people will be out of jobs, nervous of taking on large financial responsibilities, and have lost their appetite for risk.
The Office for Budget Responsibility forecasts a 35pc contraction in GDP from now until June and a recession certainly bodes badly for home values. Savills has forecast a 5 to 10pc short-term price fall.
The Centre for Economics and Business Research goes further with a prediction of a 13pc drop. and social distancing rules made valuations and viewings impossible. Zoopla says the market is “in suspended animation” and demand from new buyers has fallen by 70%. As a result it expects the number of sales over the course of the year to be half of 2019’s figure.
Exchange is the first contractual hurdle
If completion does not take place after contracts have been exchanged due to COVID-19, the parties not completing will be in default.
and how, if completion does go ahead, that it will need to satisfy the requirements of Public Health England who state that:
“…people must follow advice on social distancing to minimise the spread of the virus”.
The contract provisions relating to default will probably apply unless the non-defaulting party takes a ‘good faith’ view.
Notices to complete, penalty interest and deposit loss may all come into play.
If the transaction forms part of a chain of transactions, it may not be possible to take such a view without incurring a penalty.
There’s no specific ‘force majeure’ provision in the Standard Conditions of Sale and it may be that it would be difficult to imply one.
A contract is frustrated if it’s incapable of being performed, due to an unforeseen event (or events) which is not the fault of either party.
It may be that the contract might be frustrated by isolation or restrictions on movement and activity, but it’ll depend on the circumstances of the individual case and, ultimately, the attitude of the courts.
It’s difficult to envisage what might happen to a contract if it’s frustrated. Some commentators have suggested that the provisions relating to rescission might apply.
It may be that contracts will not be frustrated.
However, that a certain contract would be held to be frustrated in the current circumstance is not something that can be treated as a presumption which clients need to take on board.