RE6/7
The Contract
Drafting the contract
→ Before the actual transfer of title to property, parties will ENTER INTO A BINDING CONTRACT.
This defines the extent of the land to be sold and sets out the terms on which the seller will sell,
including date of completion.
Title is transferred in the transfer deed upon completion but the terms of the transfer deed are fixed by
the terms of contract.
→ Seller’s solicitor drafts the contract and two identical copies and sent to the buyer’s solicitor for approval with
the rest of the pre-contract package.
Further copy of contract to be retained by seller’s solicitor so as to deal with any amendments proposed
by the buyer.
Contract terms are open to negotiation with the buyer and the seller must be prepared to concede points
in the buyer’s favour.
→ Drafting contract is the MOST IMPORTANT STAGE OF TRANSACTION and is an exercise in the art of
compromise.
→ Seller’s solicitor will turn the instructions from client into the contract agreement that has been reached by the
parties.
This includes dealing with aspects particular to the transaction and investigating title.
Elements of the contract
ELEMENTS OF A CONTRACT – Contract is made up of:
the particulars of sale
the standard conditions of sale (SCPC) (3rd ed)
the special conditions
The → This describes the estate in land being sold and the physical extent of that land.
particulars → May also contain reference to any easements or covenants which benefit the land.
of sale → The aim of the particulars is to give a clear and concise description of the property. If the land has a
regular postal address and clearly marked boundaries then descriptions of these will suffice. If not, a
fuller description and plan may be needed.
Plan must be used on a sale of part of land and may be desirable in other cases, such as where the
boundaries of property are not self-evident. Whatever plan is used, it must be of sufficient size and
scale to be useful for purpose (Land Registry has a lot of specific requirements for plans submitted
to it)
If a plan is used then the contract and transfer will need to make reference to it and any markings
on it. There should be no discrepancy between the verbal description of the property and the plan,
if there is then it is a matter of construction which of the two descriptions will prevail. However…
‘For identification purposes only’ = where there is discrepancy and the plan has been
described as being for identification purposes only, the verbal description of the land will
prevail.
‘More particularly delineated’ = the plan will prevail over verbal description where the
phrase ‘more particularly delineated’ has been used. This phrase should not be used unless
the plan is to scale.
A mistake in the particulars of sale may give the buyer a remedy in misdescription or
misrepresentation.
The → The Standard Commercial Property Conditions provide standard, binding terms of the contract for
standard commercial property transactions, however not all terms are appropriate in every transaction.
conditions → This sets out the terms of the sale, the standard conditions are a set of conditions that have been
expertly drafted and are common to all transactions - solicitor will be familiar with these.
The special → These are drafted by a solicitor to deal with the particular circumstances of the transaction or to vary a
conditions standard condition position.
If a contract incorporates one of the sets of standard conditions and then adds a special
condition to the contrary, the special condition will prevail.
1
The Contract
Drafting the contract
→ Before the actual transfer of title to property, parties will ENTER INTO A BINDING CONTRACT.
This defines the extent of the land to be sold and sets out the terms on which the seller will sell,
including date of completion.
Title is transferred in the transfer deed upon completion but the terms of the transfer deed are fixed by
the terms of contract.
→ Seller’s solicitor drafts the contract and two identical copies and sent to the buyer’s solicitor for approval with
the rest of the pre-contract package.
Further copy of contract to be retained by seller’s solicitor so as to deal with any amendments proposed
by the buyer.
Contract terms are open to negotiation with the buyer and the seller must be prepared to concede points
in the buyer’s favour.
→ Drafting contract is the MOST IMPORTANT STAGE OF TRANSACTION and is an exercise in the art of
compromise.
→ Seller’s solicitor will turn the instructions from client into the contract agreement that has been reached by the
parties.
This includes dealing with aspects particular to the transaction and investigating title.
Elements of the contract
ELEMENTS OF A CONTRACT – Contract is made up of:
the particulars of sale
the standard conditions of sale (SCPC) (3rd ed)
the special conditions
The → This describes the estate in land being sold and the physical extent of that land.
particulars → May also contain reference to any easements or covenants which benefit the land.
of sale → The aim of the particulars is to give a clear and concise description of the property. If the land has a
regular postal address and clearly marked boundaries then descriptions of these will suffice. If not, a
fuller description and plan may be needed.
Plan must be used on a sale of part of land and may be desirable in other cases, such as where the
boundaries of property are not self-evident. Whatever plan is used, it must be of sufficient size and
scale to be useful for purpose (Land Registry has a lot of specific requirements for plans submitted
to it)
If a plan is used then the contract and transfer will need to make reference to it and any markings
on it. There should be no discrepancy between the verbal description of the property and the plan,
if there is then it is a matter of construction which of the two descriptions will prevail. However…
‘For identification purposes only’ = where there is discrepancy and the plan has been
described as being for identification purposes only, the verbal description of the land will
prevail.
‘More particularly delineated’ = the plan will prevail over verbal description where the
phrase ‘more particularly delineated’ has been used. This phrase should not be used unless
the plan is to scale.
A mistake in the particulars of sale may give the buyer a remedy in misdescription or
misrepresentation.
The → The Standard Commercial Property Conditions provide standard, binding terms of the contract for
standard commercial property transactions, however not all terms are appropriate in every transaction.
conditions → This sets out the terms of the sale, the standard conditions are a set of conditions that have been
expertly drafted and are common to all transactions - solicitor will be familiar with these.
The special → These are drafted by a solicitor to deal with the particular circumstances of the transaction or to vary a
conditions standard condition position.
If a contract incorporates one of the sets of standard conditions and then adds a special
condition to the contrary, the special condition will prevail.
1
