So the stress of packing is over and your stuff is all on the truck. Inevitably its either stinking hot or freezing cold…or raining. Either way, a few harsh words have been said between friends but nothing that a couple of coldies whilst you wait for your lawyer to confirm that settlement has taken place can’t fix. Ahh, the wonderful anticipation of unpacking.
Sadly, no matter how meticulously you plan your conveyancing and no matter how good your lawyer is, any number of things can go wrong (most commonly a bank failing to be ready on time), and you can be left out in the sun…or the rain…or the wind!
If you are at fault, it is likely that unless you have a very understanding vendor (seller) that you will be served with what is known as a notice to complete. I think of a notice to complete as the first warning but not something that is either disastrous nor something to ignore (depending on specific circumstances of course). The notice to complete is a standard notice (in this case from the vendor to the purchaser) specifying a reasonable number of days (usually included in the contract as 14) for the purchaser to turn up to settlement with the readies. During this period, it is standard for the vendor to charge a purchaser interest on the balance of the purchase price, although this must be dealt with in the contract.
Unfortunately, apart from additional interest costs and on occasion the requirement to pay the seller’s solicitors additional legal costs, it is likely that you will have to find alternative accommodation until such time as you are in a position to complete. Whilst some vendor’s will allow you into occupation of the property under licence, not many will allow you to do so.
As a part of the conveyancing process in NSW, the serious implications pertaining to a notice to complete arise in the event that you do not complete within the time specified within the notice. On the assumption that the notice to complete is constituted validly and served on the defaulting party correctly, the completion of the contract at a certain time with time being “of the essence” may be required. In the event that you fail to complete the contract, the vendor may have a number of options including termination of the contract and recovery of the deposit. Further, if the property has fallen in value, you may be required to pay damages – not a good outcome for you.
One of the ways in which you can lessen the chances of being served with the notorious notice to complete is to ensure that you instruct experienced and expert lawyers to assist you through the process. Whilst no one can predict the “black swan”, lawyers with experience in conveyancing transactions know what to look out for and can plan well ahead to ensure you are not left out in the sun…or the rain…or the wind.
If you would like to discuss any aspect of the above or have any queries about the conveyancing process in general, please don’t hesitate to contact us here at ClickLaw to discuss.
John Kettle
Solicitor Director
ClickLaw Australia