Breach of contract - what to do

A

anon33

Registered User
Messages
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Hi,

we put down a boking deposit on a 2nd hand home end of November 06.
Contracts have been signed 5 weeks ago by us and the seller. We are still waiting for the seller to return the signed closing documents to close the deal and get the keys. Now we found out last week that the seller is married and can't sell the property without his wife's signature.

What can we do if she decides not to sign? Which options do we have?

Any suggestions highly appreciated

P.S. How could his solicitor not know that he is married???
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anon33 said:
P.S. How could his solicitor not know that he is married???
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Because the vendor never told the solicitor?

Maybe there will be no problem in the vendor getting his spouse's approval?

Is there actually a breach of contract here?
 
anon33 said:
P.S. How could his solicitor not know that he is married???
Click to expand...

Well, the client either didn't tell his solicitor or he lied when asked!

Also, if contracts haven't been signed and returned then there is no legally binding contract and is therefore not breach of contract.

It is bad luck to happen to you but I'm not sure there is much you can do about it.

Clubman got there before me - post crossed with Clubman
 
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The contract has been signed and returned by seller, just not the closing documents, so it's a binding contract

We are just afraid that the wife won't sign - he might be in a divorce battle or something - why else would he hide it

We just want to know if we can sue him for damages in case the worst happens
 
Do you want this property at all costs? How long are you prepared to wait? Ask your solicitor what options you have for imposing some kind of deadline. You should be able to serve some kind of completion notice. Is the contract you've signed even valid if it was addressed to a party who didn't have complete title to the property?

I'm assuming there's something that allows you to walk away without losing your deposit, provided it's the vendor who is delaying things. Otherwise they could come along years later and try to enforce your purchase.
 
The solicitor wants to wait what this week brings.

The deeds shows only him as owner, the wife is not mentioned
 
Does your solicitor have some reason to think things will change this week? Your solicitor should be advising but should not be deciding how long you wait. If your solicitor has been engaged on a low flat-fee basis, he may be (understandably) reluctant to do any extra work beyond "standard" conveyancing tasks, especially as over 5 weeks from signed contracts to closing is not unprecedented.

I seem to remember that a completion notice takes 28 days to take effect, so you could serve one now without pulling out this week (assuming a completion notice is applicable to private sellers as opposed to new houses purchased from builders. The details depend on your contract.).
 
Hs is saying this week as the wife has been out of the country supposedly until today and should be able to sign now but I don't really trust the situation
She might not know about the sale at all???
 
anon33 said:
Hs is saying this week as the wife has been out of the country supposedly until today and should be able to sign now but I don't really trust the situation
She might not know about the sale at all???
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Don't assume the worst. It's often the case that people who marry subsequent to purchasing a property don't realise that, even where the property remains in the sole name of the purchaser, both parties' signatures are required to complete the sale, due to the Family Home Protection Act.

Take deep breaths, and see what happens - more than likely, it's such a misunderstanding. Do update us though!
 
Hi,

thanks a lot for the link.

What's the definition of family home though - the house had been rented out before it has been put up for sale

We got the keys last Friday - signed a Caretaker Agreement - had to get out of our house after the huge delay - now we are in the house but we don't know if we can kepp it and can't start painting i.e. either

Hope everything is gonna be ok though
 
The Family Home Protection Act is just the starting point. A Family Home ( in very broad terms) is a property in which a married couple ordinarily reside but Family Law legislation covers all assets and properties in a marriage whether held in joint names or not. The Vendor here should have his spouse sign the Family Law Declaration which contains the following paragraph:


No proceedings of any kind have been instituted or threatened, and no application or order of any kind has been made in relation to the premises under any of the provisions of the Judicial Separation and Family Law Reform Act 1989 ("the Act of 1989"), or of the Family Law Act 1995 (“the Act of 1995"), or of the Family Law (Divorce) Act 1996 (“the Act of 1996") and the assurance of the premises to the party or parties mentioned in paragraph 8 hereof is not a disposal for the purposes of defeating a claim for financial relief ( as defined in Section 29 of the Act of 1989) or relief ( as defined in Section 35 of the 1995 Act).

I would'nt panic yet - the fact that they are in on a Caretakers Agreement is a very positive sign.

mf
 
anon33 said:
P.S. How could his solicitor not know that he is married???
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I don't understand this. My friends recently purchased a house and they both had to sign a legal document to say that neither of them were married before. i think the solicitor made a booboo here. Also if you give false information on a legal document surely there would be serious consequences?
 


That was probably for the mortgage they took out.

This situation is different. It is the vendor the issue is with- and it has delayed sending out contracts- these are the very first documents the vendors solicitor will have to prepare and it is at this stage that the query has rightly been raised.

What reason do you have for thinking the solicitor made a booboo- other than prejudice?
 
But surely the vendor would have to prove, document wise, that they are the sole owner of the home before any contracts would be prepared?
 
But I mean the contract is already signed and returned by the seller. Would the solicitor not have asked the question at that stage?

Now where it comes to the closing documents it's firstly known that he is married. I don't understand it either -really


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No. The vendor either is the sole owner or isn't. The issue about needing spouse consent/signature is a different matter. The vendors solicitor would usually prepare the contracts just from the title. However when it came to preparing the closing documents/signing the contracts the question was raised and the issue emerged.
 
Margie said:
But surely the vendor would have to prove, document wise, that they are the sole owner of the home before any contracts would be prepared?
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The deeds shows him as the sole owner so there was no way our solicitor would have known

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