Lease of Business Premises

“I am running my business from a commercial property that I lease from my Landlord. The lease will come to an end soon; what do I need to do to protect my business and to continue to trade from the Property?”

You first need to check what type of lease you hold.

If the lease is an “Excluded Lease”, which removes the statutory right to a new lease once the current one ends, then if you cannot agree satisfactory new terms with the Landlord you will have to leave on expiry of the lease term.

Click here if you require further advice on your obligations on the termination of your Excluded Lease and how you can best protect yourself from a landlord’s claim for “dilapidations”.

You can tell if your lease is an “Excluded Lease” since you are likely to have made a Statutory Declaration before a solicitor about the exclusion shortly before the lease began. Reference should be made to this in the lease document, most usually towards the end of the main body of the lease, before its Schedules. Wording will refer to something along the lines of  “ Prior to the date of this lease the Landlord served notice on the Tenant pursuant to the provisions of the 1954 Landlord and Tenant Act Section 38A(3) and on [date] the Tenant made a declaration ………”

The rest of this blog deals with the situation in relation to Leases that are not Excluded Leases.


Landlord and Tenant Act 1954 (“the 1954 Act”)  – Lease renewal

Where a Landlord serves a notice on a Tenant seeking to terminate a commercial lease a Section 25 Notice (“the Notice”) can state that either the Landlord does not wish to grant the Tenant a new lease, or that the Landlord is content to grant the Tenant a new lease from the termination of the existing one on suitable terms.

Where the Landlord is willing to grant a new lease the Notice will set out the proposed terms.

The Tenant may either accept the terms offered (including the proposed new rent) or seek to negotiate better terms, often including a less expensive rent than the rent proposed by the Landlord.


Current Lease

Where the existing lease is a lease granted pursuant to the 1954 Act it automatically continues after the expiry of the contractual term if the Tenant remains in occupation of the premises for business purposes unless and until it is terminated in accordance with the terms of the 1954 Act by either the Landlord or the Tenant. It is most important that you remain in occupation of the Property and are continuing using it for the purposes of your business in order to preserve the right of renewal.


Termination of the Lease by the Landlord

Where the Landlord serves a Notice it must specify a termination date complying with the terms of the lease and the 1954 Act.  The termination date must be at least 6 months after service of the Notice and cannot be before the expiry date of the existing lease.


Terms of the proposed new Lease

If a Landlord specifies in the Notice that it is willing to grant the Tenant a new lease on the same terms but with an increased rent, the Tenant may negotiate the proposed rent itself or may choose to appoint a surveyor to assess the appropriate rent.

In some circumstances the Landlord will include proposals in the Notice other than rent which are different from the terms in the existing lease.

If the parties cannot agree the terms by negotiation, either party can apply to Court and ask the Court to make an order as to the appropriate rent and other terms.  If an application to Court becomes necessary, the Court will assess the current market value of the property and adjudicate on whether any other variations to the terms of the existing lease appropriate.

The deadline to make an application to Court is the date set out at paragraph 2 of the Section 25 Notice which will be 6 months following the date of service of the Notice.  Accordingly, if the Tenant cannot reach agreement with the Landlord on the terms of the new lease it should make an application to Court before the termination date.

If an application is not made to Court by the termination date and a new lease has not been finalised by that date, the existing lease will come to an end and the landlord will be able to evict the tenant or demand a much higher rent than market value.

It is possible for the parties to agree to extend the deadline to allow more time to negotiate but a tenant is strongly advised not to seek to do so without seeking legal advice first as if any mistakes are made and the deadline is missed the Lease will come to an end.


Request for a new Lease by the Tenant

There are circumstances where a tenant can serve a notice requesting a new lease; for further information and advice about this and other areas of lease renewals please contact Andrew Weir or another member of the Commercial Property Team at Anthony Gold.

Should I instruct the same firm of solicitors to deal with a loved one’s probate and conveyancing?

Applying for probate after a loved one’s passing can be a lengthy and difficult process. This is the case whether you are the executor, administrator or a beneficiary. Where there is property that needs to be sold, you will wish to minimise any delay in order to speed up the conveyancing process. So in order to avoid any unnecessary delays, it is usually advisable to instruct the same firm of solicitors to act in both the probate and the conveyancing, which should then be of benefit to you


Use a firm with Probate and Conveyancing Departments

If you choose a firm which has departments specialising in both conveyancing and probate, the solicitors in those departments will be able to collaborate with one another and use their extensive knowledge in these areas to smooth matters along. Since there is always the possibility of unknown challenges that may arise, having the ability to liaise with specialist solicitors working in both areas of work in the same office, will save time and effort, and should also prove to be more cost effective.


Streamlined process

Some firms will have individuals, like me, who work within both departments and so have the ability to press on with handling the estate and sale simultaneously. They will have instant access to information and accounts relating to both the estate and conveyancing.

Not only does this make it easier and quicker to be kept updated as and when matters are progressing, but it also results in both cases developing together at a swifter pace. There will also be the added benefit that funds received from one transaction can be immediately used for the other, without the delay and cost of waiting for funds to arrive from  elsewhere.


Links with estate agents and lenders – for valuations and finding buyers

As conveyancers, we are bound to build up rapport with estate agents locally as well as across the country. This aids clients in ensuring that they are made fully aware as to progress, and will also benefit probate clients when looking to obtain accurate property valuations.  Using agents known to the firm of solicitors, will assist in a more proactive and efficient collaboration, due to the ongoing relationship with firms.


Cost effective

In accordance with the General Data Protection Regulation (GDPR), which comes into force on 25 May 2018, all clients now need to consent to firms having, holding and handling their personal data. From a compliance perspective, this time consuming task will not have to be repeated where the same firm is instructed, thus saving time and costs where additional documents do not need to be prepared and completed.

Similarly, where colleagues are able to liaise between departments in house, there should be a saving in fees involved in both matters as time will be saved in not having to duplicate  the production of documents and communications  by two different firms.

Therefore, if you are in need of a solicitor to act for you on behalf of probate matters, be sure to look into their conveyancing department as you will most likely find that the effective route to take is one where the firm can collaborate and take on both aspects together.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Incentives stoke the market

Last Autumn, the Chancellor, Philip Hammond, put property at the very core of his Budget, abolishing Stamp Duty Land Tax for first-time buyers.

Despite pressure – not least from property solicitors and estate agents – for total reform of the whole stamp duty system, the Chancellor chose to make Generation Rent his priority.  As a consequence, anyone buying a first home of up to £300,000 is now entirely exempt from stamp duty and that will mean probably something like 80% of all first-time buyers will escape stamp duty altogether.

On the basis that any first-time buyer of a property valued at up to £500,000 will not be required to pay the tax on the first £300,000 then as many as 85% of first-time buyers in London will also escape the tax.

We can only look upon this development in a positive light and it comes on the back of first-time buyers hitting an 11-year high last year, the number of new home owners totalling more than 365,000, the highest since 2006 and up 7.4% on 2016.

Stamp duty incentives are currently key to a sluggish new-build market and discounting the price of a new property by paying the stamp duty for the buyer is becoming more and more common for developers.

Of course, incentives like this are offered to buyers across the board and regardless of income or status.

Another growing incentive for buyers to enter the new-build market is the part-exchange option offered by some large developers, such as Taylor Wimpey, under which they offer to pay a buyer ‘market price’ for their existing property.

Some developers are even offering incentives to buy-to-let investors, for example a 6% net yield for the first two years from completion.  That is an attractive offer in a declining buy-to-let market, developers offering to cover rent shortfalls and service charges, for example.

If you look around carefully then you will find all sorts of incentives to buy property from cars, iPads, electrical goods and even membership of private clubs!

Just a word to the wise, however.  Do not become distracted by the incentives and always focus on the real value of the property that you are buying!

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Winter buyers mean business

Convention has it that the best time to buy or sell property is in the spring.  The rationale behind this is that, particularly in London, most City workers got their bonuses in March and there was a resultant rush to the property market!

However, things have changed and the residential property market now is no longer as cyclical as it was and waiting until spring does not seem to make so much sense.

As we have just come through a particularly wintery spell, it is actually this season that is fast becoming the best time of year for the property market.  Buyers are more committed, there is less competition and homes, marketed properly, can often be seen in their best light.  Buyers are likely to spend longer looking at your property if it is warm and cosy and if a buyer likes a house when the snow is falling outside, that same buyer is likely to love it all the more come summer.

It has recently been reported that property websites saw record traffic over the Christmas/New Year holiday period and that means, therefore, that for a seller, this is a really strong time to list a property for sale.

Surely this is common sense.  Over a holiday period such as this, people have time to talk and make decisions and to actually look at properties albeit these days mainly on line, certainly on line in the first instance.

Therefore, given these factors, winter buyers are often more committed in terms of their seriousness and willingness to proceed quickly.  A winter buyer can be in before Easter, a spring buyer will be completing in the summer and then there is the inevitable juggling with summer holidays which can be so tedious in a chain situation.

So, therefore, if you are considering selling your property and you go into the New Year with that in mind then deal with it straightaway and don’t wait.  This makes strong sense not least because, in some areas, property prices are actually falling and so there is a need to strike quickly.  Advice to sellers – make your property look warm and inviting and please make sure that you have instructed your solicitor to prepare the “sale pack” so that the solicitor can send out the papers immediately a buyer is found.

Leasehold houses and ground rents– reform on the way?

Christmas is an odd time to announce new measures on leasehold reform and you may be forgiven for not noticing these.  However, on 21 December 2017 the Rt.Hon. Sajid Javid MP and the Ministry of Housing, Communities and Local Government did just that.

The new measures are designed to remove “unfair and abusive” practices within the current leasehold system.   These include a ban on leaseholds for all new houses (but not flats).

Pundits have frequently condemned the “broken” housing market in most of the UK and the measures are the government’s attempt to provide a fix, aimed at delivering what will be, in their view, a fairer and more transparent system for the country’s estimated 4.2 million leaseholders.

Following on from recent consultations, the proposed measures include:-

  • preventing the sale of new build leasehold houses, except where necessary, such as shared ownership
  • ensuring that ground rents on new long leases – for both houses and flats – are set at zero
  • working with the Law Commission to help existing leaseholders and make the process of extending a lease or purchasing a freehold much easier, faster and cheaper
  • providing leaseholders with clear support on the various options available to them for redress

This is combined with a wider internal review of the support and advice to leaseholders to make sure it is “fit for purpose”.

From a solicitor’s standpoint, we often see situations in our day to day work which can lead to unacceptable delay or costs for leaseholders.   The situation of onerous ground rents – such as those doubling every 10 years – has already been highlighted by lenders.  Such terms were commonplace at the height of the housing boom in the mid-2000s.  And in addition to ground rent, there are also other unjustifiable charges – for providing notices on change of ownership and mortgaging, obtaining management information for a sale, approving a deed of covenant and providing certificates.   These charges can amount to several hundred pounds for the seller and buyer.

So when can we expect things to change?

This will depend on Parliamentary time being available.  Therefore, no date is set yet although it is understood the government is aiming for a date by the end of 2018.  Also expect the devil to be in the detail, as matters are worked through in greater detail.  Whilst the practices have been described as “feudal”, some may regard this as being a sound-bite rather than a true observation of the market.  For example, there are large modern developments which combine commercial premises, flats and houses – if they are properly designed then the leases create a proper structure for management of these developments.

Therefore, expect there to be detailed and persuasive representations by trade bodies acting for consumers, the lawyers and the landlords.  However, the government does seem to have this particular area in its sights and, subject to Parliamentary time and other diversions such as Brexit, we could well find that 2019 heralds some overdue and welcome changes.

Anthony Gold’s conveyancing and housing litigation team handles a wide range of leasehold work including sales, purchases, lease extensions, Right to Manage applications and freehold acquisitions as well as disputes with and disrepair claims against landlords.

Online Estate Agents or High Street Estate Agents

Many of you out there will have seen the adverts on the television saying how many thousands of pounds you may or may not save by selling your house via an online estate agent such as Purple Bricks or Tepilo. However, before you decide which estate agent to instruct, do you know what they do and how they can assist in getting the sale to Completion?

If you have not bought or sold recently then you may think that the estate agent finds you a buyer and then sits back waiting for the commission, some might, but the good estate agents are part of your team working towards the common goal of Exchange of Contracts and Completion of your sale. The team working towards Completion are you, the Estate Agent and your Solicitor.

What does the Estate Agent do?

  • Yes, we all know they find your Buyer, but that is just part of the process.
  • The ability of the Buyer to proceed is verified – do they have or can they obtain a mortgage, what deposit do they have, are they selling and if so is their property under offer? There is not much point proceeding with a Buyer who has not yet sold……….
  • A Memorandum of Sale is sent out confirming the details of the sale and introducing the two sets of solicitors to each other.
  • The Estate Agent will chase progress of the Buyer’s mortgage application and pursue the valuation – without a valuation no mortgage offer will be issued and no sale will proceed.
  • The Estate Agent will chase to ensure that the contract is issued to your Buyer’s solicitor – make sure you complete the forms your solicitor requires and then your solicitor prepares and submits the papers.
  • The Estate Agent will chase your Buyer and their solicitor to make sure formal instructions are given and monies on account have been paid so that the searches can be applied for once the contract papers are received.
  • The Estate Agent will liaise with both sets of solicitors to ensure searches are received, queries are raised by the Buyer’s solicitors, these queries are then answered by both the Seller and the Seller’s solicitor so that once all searches have been received, queries have been resolved and mortgage offer issued we can look to exchange.
  • The Estate Agent is a go between for the Buyer and Seller to resolve issues to do with Completion Dates, house contents to be left/removed.
  • On Completion the Estate Agent is there to receive the keys from you to hand over to the Buyer once the purchase monies have been received.

All of the above seems straightforward, however, it is extremely rare for a transaction to proceed in 9 simple steps……..

You, the Estate Agent and your Solicitor are a team. Your solicitor cannot speak directly to your Buyer, so  if there any delays the Estate Agent can chase your Buyer (to make sure funds are paid to apply for searches, to obtain progress reports on the mortgage offer, that the Buyer signs the contract and pays the deposit to their solicitor, to agree Completion Dates), your Solicitor can chase the Buyer’s solicitor to make sure searches are applied for, enquiries raised, contract sent to the Buyer to sign, to exchange contracts and to complete the sale. In tandem the good Estate Agent and Solicitor push the transaction to a satisfactory conclusion; the sale of your home.

Whilst I agree that the level of the Estate Agent’s Commission is a factor in deciding who to instruct, now you know what they do and how they can assist your Solicitor in progressing the sale to Exchange and Completion, pick one that will go the extra mile, pick one that will work with you AND your Solicitor.

If you are thinking of selling then do not be afraid to sound out your solicitor and find out who he/she would recommend, sometimes the relationship between the Estate Agent and the Solicitor is the difference between your Buyer pulling out or the Buyer moving into your home…

For further information on our services or to obtain an estimate please contact a member of the conveyancing team.

How to streamline the conveyancing process

As the government consults on how to reduce the time taken to reach exchange of contracts in conveyancing transactions, what can you do as a seller or purchaser to speed up the conveyancing process?

The Government’s Call for Evidence, ending on 17th December 2017, has asked for feedback on a number of points, including how to:

  • Help consumers make more informed decisions when selecting a conveyancer.
  • Make improvements to the processing of property searches in order to speed up the selling and buying of homes.

With the possible benefits of:

  • Encouraging sellers and buyers to use the same firm (subject to conflict of interest).
  • Creating a ‘Property Passport’ or similar (but not a relaunch of the home information packs) and a better use of e-conveyancing and digital technology.
  • The introduction of a ‘How to Buy/Sell’ guide.

Conveyancing transactions are commonly delayed due to:

  • Defective title/lease – for example an old lease or a right/restriction on a title may be unacceptable for buyers or their lenders today.
  • An incomplete chain – you may have found your dream home but your sellers may not have found theirs yet.
  • Lease extensions simultaneous with a sale – there are many different routes to extend your lease and most take time due to the additional correspondence with the Landlord (or their solicitor) and considerations as to funding the lease extension. Any purchaser will also want to ensure that the terms of the extended lease are acceptable to them, and so will any lender.

So what can sellers and buyers do to speed up the conveyancing process?
Here is a brief checklist:

  • Make sure the admin is done – provide your ID, sign the authorisation to commence work and confirm all of your details and provide all paperwork you hold in relation to the property as soon as possible.
  • If you are buying and selling, wherever possible, use the same solicitor for the sale and purchase. Having two lawyers to deal with increases the time, correspondence and time taken to transfer documents and funds on related transactions.
  • When selling a property complete and return your Property Information Forms and supporting documents to your lawyer, even before you have accepted an offer.
  • Buyers should confirm how they are funding their purchase and obtain an offer in principle as soon as possible. If funds are coming from another source, such as a Help to Buy Scheme or family member, provide as much detail as possible to your solicitor at the outset of the transaction.

What do Anthony Gold do to help?

  • One lawyer acting – yes, you will get emails from their team assistant and paralegal to speed up communication, but the lawyer will be doing all of the legal work and have a full and comprehensive understanding of your transaction and any related transaction.
  • Up front on conveyancing fees – we aim to provide you with an estimate of the work that is included together with a breakdown of disbursements and what may incur an additional fee. This includes the drafting of deeds of covenant or trust documents.
  • We are on the panels of all major lenders and the majority of smaller lenders too – meaning we can act for your lender too and streamline the process by answering their enquiries and dealing with their requirements directly, without going through a third-party solicitor. We receive mortgage funds on completion (usually the working day before hand), meaning an earlier time for completion on the day.
  • By working closely with other specialists in our leasehold enfranchisement, housing, family and probate departments to assist with a lease extension, deeds of trust or co-habitation agreements and sales as part of the administration of an estate, we are aware of all aspects and factors that need to be taken into consideration on your particular transaction.
  • Attached to every estimate is our ‘Guide to buying and selling residential property guide’ – a valuable resource to first timers and an update to those who have bought and sold before, from detailing circumstances when an indemnity policy may be needed to those who might need to be notified of your new address.
  • We send the property information forms to sellers as soon as they instruct us, even if this is before they have found a buyer. This means when a buyer is found they can be sent with the draft contract and Land Registry title documents as soon as we receive the memorandum of sale from the estate agent.
  • Similarly, when acting for buyers we forward all the information to the buyer once received, and compile the ‘report on title’ once we have received all the documents, including searches and replies to enquiries. This means that if the buyer has any questions for the seller, these can be forwarded early in the transaction so they can be addressed and resolved.

For further information on our services or to obtain an estimate please contact a member of the conveyancing team.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Conveyancers – What do they actually do?

I have worked for solicitors handling residential conveyancing in South London for over five years and in both my professional and personal life I have been asked three questions numerous times:

1) Why are conveyancing fees so high?
2) Can’t I do the conveyancing myself?
3) What do conveyancers actually do?

Not surprisingly, these questions are mostly asked by first time buyers who have discovered that it’s not only the purchase price they have to pay to become a homeowner; there are mortgage fees, surveyor’s fees, solicitor’s fees, Land Registry fees and of course stamp duty land tax. Also, it becomes apparent in the early stages of the transaction that it  may not be as quick as expected.

With so many groups involved and payments to make it can become quite confusing to know what everyone actually does and what you are paying for. Therefore, I have outlined some of the work undertaken by a conveyancer when acting for a purchaser.

1) Advising on the title deeds for the property, the property information forms completed by the seller and the Lease (if the property is leasehold). Here we check there are no restrictions that may affect a client’s enjoyment of the property or its value. These include parking restrictions, restrictive covenants, whether pets are allowed, disputes with neighbours and many more.

2) Advising on the local authority search including whether all works revealed in the homebuyer’s survey have the correct planning permissions or building regulation sign off, whether there are any notices served which could affect the property and various other matters. No owner wants to cover the cost of rectifying the work of a previous owner who has failed to obtain the right planning permission or comply with other restrictions.

3) If the property is leasehold, we review the lease and service charge accounts (funds payable to the landlord or their agents to maintain the building/estate) to ensure that there are no arrears due from the seller. We also check for any major works planned in the near future, such as replacing the windows, as the cost of the works could run into thousands of pounds.

4) If a mortgage is required, which in most purchases it is, the lender requires a conveyancer to act on their behalf to confirm the property is marketable. At Anthony Gold Solicitors, we are authorised to act on behalf of the vast majority of mortgage lenders.

5) We also deal with the transactional procedures, which include exchanging contracts (making the purchase legally binding); reporting to your mortgage lender and obtaining all funds to complete the purchase; arranging for the funds to be paid to the seller’s solicitors and completing; preparing and submitting the stamp duty land tax return and paying the required tax to HMRC; and finally registering the client’s ownership of the property.

All good conveyancers should carry out these procedures, but the cost of the work varies from one firm to the next. Therefore, if a buyer is looking to save costs they may be tempted to choose the cheapest fees. However, buying a property is likely to be the biggest and most important decision a person makes, and can be very stressful. Therefore, you should choose a good conveyancer who will make the legal process as smooth as possible, be available to their clients and instil confidence since they understand their client’s requirements and are always acting in their best interest. This is one of the most important roles of a conveyancer and what we provide in our conveyancing team at Anthony Gold Solicitors.

So yes, a conveyancer is essential when purchasing a property, and yes fees vary widely across London, but when choosing your conveyancer, you should consider more than just the fees. You cannot put a price on peace of mind.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Selling your Right to Buy property

Everyone who buys a property ultimately sells and Right to Buy properties are no different…. except.

While everyone knows if you sell in the first five years you must repay some of the discount however it is less well known that the authority who granted the Right to Buy has a 10 year first refusal option, protected by a Land Registry restriction.

The property has to be offered to the original landlord first and if they don’t want to buy it they will issue a certificate allowing the property to be sold on the open market.  This applies to all sales during the first 10 years not just the first.

A seller needs to factor this into their transaction and ensure the landlord’s consent is granted before offering the property on the open market.

A buyer needs to advise his lender or broker about the right of first refusal as some mortgage providers do not lend in these circumstances.

Seller’s should also remember a Right to Buy purchaser who buys for the benefit of someone else, sometimes known as deferred resale agreement, breaches the terms of their discount.  The discount is given to enable the tenant to buy and live at the property for their own benefit and not for the benefit of those who fund the purchase.  Entry into a deferred purchase agreement triggers an immediate repayment of the discount.

Finally, repayment of the discount on an early sale is charged at 1/5th of the discount for every full or part year prior to the fifth anniversary of the first purchase.  If you sell one year and one day early you will repay 2/5th of the discount.  Sales are caught by this provision as are transfer for no value (gifts) or transfers into joint names.  A restriction on the title ensures that a transaction cannot be registered without complying with this requirement.

For more information on Selling your Right to Buy property get in touch with the conveyancing team at Anthony Gold on 020 7940 4060 or email

Selling your business protect yourself from abortive legal costs

Business owners can take steps to reduce their risk of incurring high abortive legal and accountancy costs.  The key is to check out the Buyer and negotiate carefully the Heads of Terms or Memorandum of Sale at the outset of the deal.

Credit checks on Buyers

Before accepting an offer for your business, you should check the credit worthiness of your buyer. You could not get  a mortgage, credit card or loan without having this checked so why would you start what could be a complex and expensive process to sell your business unless you are satisfied as to the financial viability of your buyer? Unfortunately, some commercial agents who market businesses for sale do not do this, as they are keen to secure a deal very quickly.  But dealing with someone who does not have the finance arranged to buy the business will just result in frustration after what could be months of wasted time, energy and costs.

Proof of Funds

Request proof of funds.  If your buyer is a cash buyer then you should ask to see proof that the cash funds are available. Buyers often claim to be cash buyers when they are not.  For example, if they need to borrow money from a friend or relative, refinance their own property, are waiting for an inheritance to be paid, waiting for a bank loan etc.  In other words they are not yet in possession of liquid cash but make an offer which is, in reality,  conditional on their finance being made available. If the buyer is reliant on bank or other finance, then ask to see a letter approving the finance in principle.

Heads of Terms/Memorandum of Sale

It is important to set out the terms of the deal early on in the negotiation.  Don’t rush to simply agree the sale price while leaving other important details to be sorted out later on.  Having a clear set of terms with a timetable will influence the way the transaction will proceed, and guide the lawyers to work towards achieving the agreed terms.

Heads of terms or memorandums of sale will usually be “subject to contract” and so not legally binding. However certain terms can be expressed to be legally binding and will be. For example confidentiality clauses and provisions regarding payment of legal or accountancy costs if a party withdraws.

There are various ways of protecting yourself against wasted legal and other costs. For example, make it a condition of the sale that if the buyer withdraws or does not meet the agreed timetable, they will pay the reasonable abortive legal and other costs.  An undertaking can be obtained from the buyer’s solicitor to pay such costs and the amount can be limited to an estimated sum.

Some buyers may not wish to pay such costs until they have had the opportunity of carrying out basic due diligence and being reasonably satisfied as to the viability of the business they are buying.  This is not unreasonable and so sellers’ solicitors and accountants could prepare a basic due diligence pack early in the transaction and give the buyers a fixed period of time in which to consider and provide the undertaking as to costs.

Non-refundable deposit

Consider requesting payment of an initial deposit to be held by the Seller’s solicitors as stakeholders towards the deposit to be paid on exchange of contracts.  If the Buyer subsequently withdraws for no good reason, the abortive costs can be paid out of the deposit monies.  Estate agents selling residential property frequently request such deposits and it is usual to then agree a lock-out or exclusivity agreement dealing with the terms on which such a deposit is held.

Careful drafting of suitable clauses is needed at the outset of the transaction to ensure that proper terms and conditions are agreed and the transaction gets off on a strong footing.

Landlord’s costs

If you are selling the assets of the business, including a commercial lease, it is usually necessary to obtain landlord’s consent to assign the lease. Less frequently this is also required with share sales where there is a major change in the share ownership.  Consider therefore imposing a condition in the heads of terms that the buyer pays the landlord’s legal and professional costs.

Abortive costs

There are of course no guarantees that a transaction will proceed until actual completion has taken place.  But by imposing terms at the outset for the protection of the parties, the chances of incurring high abortive legal and other fees can be substantially reduced.

Each case is different, but it is more difficult to renegotiate terms at a later stage when time has passed and each side has already incurred costs. By taking good legal and professional advice at the outset, you may be able to reduce your chances of incurring abortive costs which are a drain on your business finances.

If you would like an initial discussion as to your options, please contact me or a member of our Commercial team on 020 7940 4000.

Alan Zeffertt

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*