Your agreement of sale is doing more work than you think

Almost every argument I see about a property sale is not really about the property. It is about who carries a risk that the agreement never allocated, because the parties used a template, changed the names and the price, and left everything else as they found it.

Three clauses decide most of it. A fourth is usually missing.

What happens if the transfer takes a year

An agreement of sale creates an obligation to pass transfer. It does not pass it. Registration happens at the Deeds Office, and between signature and registration there is a period during which the seller is still the registered owner and the buyer has paid.

That period is not a formality. It can run for months. Rates have to be cleared with the local authority, a capital gains tax clearance has to be obtained, and the conveyancer has to lodge and wait. Any one of those can stall.

So the question the agreement has to answer is: what happens while everybody waits?

• Who pays the rates and the utility bills in the meantime?
• Is the buyer entitled to occupy before registration, and if they occupy, are they paying occupational rent or living there free?
• If the delay runs past a stated date, can either party walk away, and does anybody pay for the delay?

An agreement that says nothing about this has not removed the risk. It has left it to be argued about later, at a point when the parties are no longer friendly.

What counts as a breach, and what happens next

The second clause is the breach clause, and the usual template version says something close to "should either party breach, the aggrieved party may cancel after fourteen days written notice".

Read that as a buyer who has paid eighty percent of the price and is a week late with the balance. Cancellation on those terms is catastrophic and wildly out of proportion, and yet that is what the clause says.

What a breach clause should distinguish:

1. Late payment, which is usually cured by paying, with interest.
2. Failure to perform, such as a seller who will not sign the transfer documents, which is usually cured by an order compelling them.
3. Something that cannot be cured, such as a seller who has already sold to somebody else.

Only the third is really a cancellation case. Collapsing all three into one clause with one remedy is how a late payment turns into a lost house.

Who pays for the argument

The costs clause is the shortest and the most consequential. "Costs on the legal practitioner and client scale" means the losing party pays the winner's actual bill rather than a taxed portion of it.

That is a serious clause. It is also frequently one sided: drafted by the seller's practitioner, it protects the seller and says nothing about the buyer recovering if the seller is the one who defaults.

A costs clause that runs one way is not a costs clause. It is a deterrent aimed at one of the two people signing.

Make it mutual, or take it out.

The clause that is usually missing

The missing one is the clause that says what the parties know about the title.

If the seller holds a title deed in their own name, registered, unencumbered, this does not matter much. Frequently they do not. They hold rights under a cession, or an agreement of sale of their own that was never registered, or a share certificate in a company that owns the land, or a council offer letter. All of those can be sold. None of them is a title deed, and each takes a different route to registration, with a different length and a different set of things that can go wrong.

A buyer is entitled to know which one they are buying, in writing, in the agreement. Not because it makes the sale unsafe, but because it decides how long the wait is and what the conveyancer is actually going to have to do.

The sentence to look for is a plain statement of what the seller holds and what has to happen before a deed can issue in the buyer's name. If the agreement does not contain that sentence, ask for it before signing rather than after.

What to actually do

Read the four things above in the document in front of you. If any of them is absent or reads as boilerplate that nobody adjusted for this sale, that is the conversation to have with your practitioner, and it is a cheaper conversation now than the one that follows a stalled transfer.