Documents to download

The home buying and selling process

The home buying and selling process in England and Wales is not mandated in detail by law; the law provides a broad framework in which the parties are free to decide how to shape their own transactions. However, in practice most transactions follow standard industry protocols and are completed through a private contract.

Conveyancing involves the legal transfer of home ownership from the seller to the buyer. The conveyancing process is complex and multi-staged. In most cases buyers and sellers rely on advice and support from a range of professionals, including estate agents, conveyancers, surveyors and mortgage lenders. Key features of the process include:

  • Properties are generally marketed by estate agents.
  • Sellers accept offers to purchase ‘subject to contract’. Such agreements are not legally binding; either party can withdraw without penalty until the point at which contracts are exchanged.
  • Once an offer is accepted, both parties will instruct a conveyancer (either a solicitor who specialises in the transfer of land or a licensed conveyancer) and begin the conveyancing process.
  • The legal principle ‘Caveat emptor’ (buyer beware) applies – this places the onus on the buyer to find out if there are any physical defects or legal issues relating to the property. The buyer’s conveyancer will gather information about the property from various public authorities and the seller’s conveyancer.
  • Once contracts have been signed and exchanged the parties may not withdraw from the agreement without penalty. The final stage of the process is completion – at this point the financial transaction is completed and ownership of the property changes hands.
  • Many homes are bought and sold as part of a chain, and consequently there may be multiple buyers and sellers going through these processes at the same time.

The conveyancing process in Scotland differs from that in England and Wales.

Concerns with the current process

There were over 1 million residential property transactions in England in 2018. Despite a large number of successful transactions, the consumer experience of buying and selling property in England is often criticised for not being as efficient, effective, or consumer-friendly as it could be. In fact, moving home is widely acknowledged to be among the most stressful of life experiences.

The key areas of concern to home movers and industry stakeholders have been identified as:

The time taken to complete a transaction. The home buying and selling process is complex and can take months to complete. The average time from offer to completion in England and Wales is thought to be between 12 to 14 weeks, whilst the time taken to complete a sale from initial listing of the property currently stands at approximately 19 weeks. Leasehold properties typically take two to three weeks longer to buy than an equivalent freehold property. Delays can lead to stress, additional costs for those involved and can increase the risk of gazumping and transactions failing.

Transaction failures. It is estimated that over a quarter (estimates vary from 25% to 33%) of all home buying transactions fail, and some 25% of buyers and sellers who experience a failed transaction incur costs of more than £1,000. The Government estimates that the total losses incurred by buyers and sellers through failed transactions amounts to hundreds of millions of pounds each year.

Consumer inexperience. Most home buyers and sellers are relatively inexperienced and unfamiliar with the conveyancing process. Whilst there is a wide range of information available in books, guides or on the internet to help consumers, it is not clear whether people know to seek it out, read it and act on it.

Lack of transparency. There is currently little comparative information available on the service levels provided by different conveyancers to enable consumers to make an informed choice. A further concern is the lack of transparency around the payment of ‘referral fees’ to estate agents for referring clients to conveyancers, surveyors and mortgage brokers.

Weak regulation of estate agents. Commentators have called for stronger enforcement of the existing regulatory framework for estate agents, and the introduction of minimum professional standards which would need to be met before an individual could operate as an estate agent. It is contended that this would help professionalise the industry, improve services and reassure consumers.

Lack of digitisation. Some parts of the home buying and selling process have been transformed by technology. However, there has been limited progress in other parts of the process, particularly in the official search and legal conveyance stages. Further technological developments could help make the process simpler and faster.

Proposals to improve the home buying and selling process

The most recent attempt to reform the home buying and selling process was the introduction of Home Information Packs (HIPs) by the last Labour Government. HIPs provided property information ‘upfront’ and were intended to speed up the home buying process, lead to fewer sales falling through and reduce the opportunity for gazumping and gazundering. Following a phased implementation, HIPs were fully introduced by April 2009. However, they were widely criticised and suspended by the incoming Coalition Government in May 2010.

The Coalition Government supported a voluntary, industry-led approach to improving the home buying and selling process, believing that improvements would be driven by the market led development of innovative products. The Government also emphasised that buyers and sellers had the option to use contractual agreements to increase commitment to the transaction.

The Conservative Party Manifesto 2017 committed to “reform and modernise the home-buying process so it is more efficient and less costly”. In October 2017, the Government launched a Call for Evidence seeking the views of industry and the public on how to improve the process.

The Government’s consultation response, published on 8 April 2018, concluded that there is no ‘silver bullet’ – no single fundamental change which will improve the process. Instead, the Government proposed a number of smaller, incremental changes to the current system, which when taken together are intended to make the process “quicker, cheaper and less stressful”.

The consultation response sets out the Government’s ‘Plan of Action’ to improve the home buying and selling process in England, including proposals to:

  • Introduce further estate agent regulation. The Government will:
  1. consult on creating a mandatory professional qualification for estate agents;
  2. strengthen enforcement of the existing regulatory framework for estate agents; and
  3. increase the transparency of referral fees.
  • Develop and publish ‘How to Buy’ and ‘How to Sell’ guides to ensure the public are better informed of the process.
  • Reduce the time from offer to completion by:
  1. harnessing advances in technology;
  2. encouraging sellers to collect together relevant information in order to be ‘sale ready’;
  3. setting fixed time frames and maximum fees for the provision of leasehold information; and
  4. requiring local authorities to respond to search requests within 10 working days.
  • Work with industry to develop and pilot a standardised reservation agreement which can be used in any transaction.

The Ministry of Housing, Communities and Local Government (MHCLG) plans to set up a stakeholder group to support implementation of the proposals.

Stakeholders have been broadly supportive of the Government’s proposals to improve the home buying and selling process.

Conveyancing in other countries

In many countries the home buying and selling process is quicker than in England, more property information is provided up front, buyers and sellers have greater certainty that the sale will go ahead, there are less transaction failures and chains of sales transactions are less common. However, the fees and taxes associated with buying a property in other countries may be more expensive.

The Scottish conveyancing system is different to that in England and Wales. Key differences include:

  • Properties are often marketed and sold by solicitors, rather than estate agents.
  • The seller must provide potential buyers with a ‘Home Report’ on their property, consisting of a survey/valuation, an energy report and a property questionnaire.
  • Searches can be completed within as little as 24 hours as search companies operating in Scotland receive data feeds direct from the local authorities.
  • Law Society of Scotland guidelines state that solicitors should not be involved in gazumping and gazundering.
  • Where possible contracts (missives) are negotiated and agreed as soon as possible. Once concluded, the terms of the missives are legally binding.

Research by the Conveyancing Association, published in 2016, found that in Scotland transactions without a mortgage were capable of being completed within five working days.

Documents to download

Related posts