A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
A widespread issue for completing property transactions since the lockdown has been complying with the Land Registry requirement for deeds to be “wet-signed”. This affects all dispositions of a registered estate including transfers, registrable leases, legal charges and easements and means that it has not been possible to complete such transactions by electronic means available for other types of legal documents. A hoped-for announcement of a change in the regulations has not yet been seen.
Lenders have long had the option of completing electronic discharges or e-DS1s, although this only applies to discharge of the whole of a registered title. Many lenders have chosen still not to do so; however, we may see practices changing under the current conditions.
The Land Registry helpfully confirmed last week that it will extend all current cancellation dates until 1 June 2020 (this relates to requisitions on applications) and it will not issue any warnings of cancellation in the interim.
Time for filing SDLT returns
The 14-day period for payment of SDLT is applicable as normal. However, HMRC has set up a helpline for those people who are struggling to make a payment due to Covid-19 and the restrictions that are currently in place, the helpline number is 0800 024 1222. If you receive a penalty due to non-payment of SDLT as a result of Covid-19 an appeal can be submitted in the usual manner explaining the reason for the delay. Appeals will be dealt with on a case by case basis.
Government guidance on buying or selling homes
The Government has issued guidance and has urged all parties involved in home moving “to adapt and be flexible to alter their usual process.”
The Government guidance states that home buyers can continue with their purchase if they are moving into empty properties.
If, however, the property is currently occupied, the guidance states parties are encouraged to do all they can to amicably agree alternative dates for a time when it is likely that the stay at home provisions will no longer be in place. If alternative dates cannot be agreed, this will be classed as a critical house move, which will be exempt from the emergency enforcement powers that the police have been given to respond to Covid-19. However, people must follow advice on staying away from others to minimise the spread of the virus.
To help ease the process, the Government has also agreed with banks that mortgage offers should be extended where the completion has been delayed in order to prioritise safety.
The Government has also worked with conveyancers to develop a standard legal process for moving completion dates. The Law Society in conjunction with other conveyancing bodies has issued a toolkit including a template agreement for varying the contract. All of this is designed to simplify the process of agreeing changes so that it is as standardised as possible.
If both parties agree that the completion date can be moved, it would be a good idea to agree a process which allows some flexibility to delay the move date further if the Government extends the current stay-at-home period.
There is much to consider during this whole process: what would happen if somebody in the chain passed away? What happens if property prices fluctuate? It should also be noted that the Land Registry still requires “wet” signatures on the transfer documents. Meaning that the transfer will need to be signed and witnessed in person. Special consideration will of course again need to be given to social distancing guidelines.
In line with the Government’s advice, protecting the health of individuals and the public must be the priority.
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