Understanding legal terms in the Jersey property buying process can be perplexing, especially for first time buyers.
One question that is raised time and again is that of sold ‘subject to contract’. What is the legal effect of this set of words.
Freehold and Flying Freehold
In relation to Jersey Freehold and Flying Freehold the position is as follows:
Once an offer has been accepted by the Seller it is usual for the acceptance to be marked ‘subject to contract’. This reinforces the fact that until the Seller and the Purchaser actually attend the Royal Court to pass contract, either side can walk away from the transaction.
In any event notwithstanding these words, the Royal Court cannot order specific performance of the transaction because of the maxim nulle promesse à héritage ne vaut. In essence the contract is not perfected until passed by the Royal Court, for which purpose both parties must attend personally and take oath. The Royal Court will never force an unwilling party to take an oath nor appoint an officer to act on his behalf, albeit there are one or two exceptions to this. There may be financial implications for the Seller and the Purchaser such as estate agent fees and or legal fees and the like but not a completed transaction.
Share transfer property
In relation to share transfer property the position is somewhat different.
Once an offer has been accepted by the Seller it is important to ensure the acceptance is marked ‘subject to contract’. The maxim mentioned above does not apply to share transfer.
If the parties agree to a transaction relating to shares and do not specify that it is ‘subject to contract’ the parties may find they are locked into complete the transaction. This could have a serious impact, for example where a Purchaser finds issues with the property or finds the bank has decided not to lend the mortgage monies. You could still be obligated to complete the transaction. While it will always depend on the evidence in a particular matter to prove a position, it is important to ensure that ‘subject to contract’ is firmly in one’s mind and communicated to the other party to ensure no argument further down the transaction process.
For advice, assistance or further information on buying or selling property in Jersey please do not hesitate to call 630530 or email us on firstname.lastname@example.org or call 630530.