Notices to Complete: A Two Edged Sword

Anyone who takes issue with another party’s delay in completing a property sale and purchase needs to think things through before they serve a notice to complete. The effect of that notice is to make it time of the essence that completion occur by the end of the stated period. Otherwise the contract may be rescinded and amongst other things, if the buyer is then at fault it will then lose its deposit. In Clarke Investments Limited v Pacific Technologies (Court of Appeal) (2013) the completion was delayed whilst the buyer and seller disagreed over the amount payable as the seller’s solicitor had not put a VAT clause in the contract and the seller was refusing to complete without the VAT being paid.

The buyer’s solicitor had promptly served a notice to complete on the seller and returned the purchase money to the buyer but did not get it back in time to complete the purchase when as the notice to complete was about to expire the seller agreed to complete.

So the seller was very relieved to be able to cancel the contract because the buyer was at the end of the stated period in default.

It was no defence that the parties were still debating the buyer’s right to deduct some associated costs. It should have paid the purchase price in full “under protest” and reserved it’s rights to reclaim the costs later.