Moving House FAQs
Some FAQ’s about Moving House and other residential conveyancing in Northern Ireland during the Coronavirus pandemic.
If you’re trying to move house, buy or sale investment property, re-mortgage, or if you’re an estate agent or mortgage adviser trying to advise your clients about any of these things, there has probably never been a time when the position was less clear.
As a practice which acts in over a thousand house sales and purchases each year, we’re seeing a lot of anxiety and concern (which we share) about the current state of the housing market, and we’re hearing the same questions being asked time and time again, so we’ve put together this email to try work through some of the more common scenarios and queries.
This is our view as at 28th May 2020. We’ve been updating this information regularly in response to how things have changed. As you may have noticed, the information available has changed markedly over the past two or three weeks, and we may revise our position in the weeks to come!
We are still all subject (in Northern Ireland) to the terms of the (does exactly what it says on the tin) Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020). We going to refer to this as “the Regulations” from now on, ok? Although there have been types of work and gatherings where restrictions have been loosened over the past few weeks, we are all still essentially in lockdown to some degree.
The Regulations required us, among other things, to stay at home, work remotely if we can, and essentially do nothing unless it’s essential. There’s a list of what are “essential” services and workers, and, in a nutshell, pretty much no part of the property industry falls into that category.
Various offices and operations which are part and parcel of very single conveyancing transaction have closed or are working on limited functionality, which means that we have to deal both with the legal issues around moving house, and the practical ones as well.
The most prominent ‘casualty’ of being classed as a non-essential service was Land Registry of Northern Ireland, which has been an ongoing story for most of the period of lockdown, and which we talk about a lot more below.
If you mean can I physically move from one house to another, “probably not” is the most legally correct answer at this time. Quite simply, in most cases, the physical act of moving house will be a breach of the Regulations. There are exceptions, but in the vast majority of cases, you cannot carry out the physical act of moving house without breaking the law.
This should actually be the first question for every single person who is hoping to move house over the next few months, but it seems that many people are missing this entirely, and instead are focusing technicalities with Land Registry and other related matters.
Let’s consider Regulation 5 of the Regulations:
Restrictions on movement
5.— (1) During the emergency period, no person may leave the place where they are living without reasonable excuse.
(2) For the purposes of paragraph (1), a reasonable excuse includes the need—
(l) to move house where reasonably necessary;
So, essentially, it is unlawful to move house in Northern Ireland at this time unless you have a “reasonable excuse”.
If you happen to find yourself investigated or even prosecuted under this Regulation, you will have to prove that your house move was “reasonably necessary”. Now we’re talking about necessity here, not just “because I want to”. If you look at the other examples of “reasonable excuse” in the Regulations (the moving house one is clause “L”), we’re talking about seeking medical assistance, obtaining essentials, attending the funeral of a close family member, donating blood, or to provide personal care to vulnerable groups (not exhaustive, but you get the idea of the level of necessity).
If you therefore think that you can bring yourself within this level of necessity when moving house, you’re going to need a much better reason than:
- My new house is ready and the builder is pressurising me
- I have my removals booked and they won’t rebook
- I have DFS/Currys/Sky coming on a particular date and can’t get another slot
- Because I really want to
- The estate agent/vendor/vendor’s solicitor/mortgage adviser/mortgage company/my dad said it was ok.
In all cases, you have to ask yourself whether the physical act of moving house is one of the exceptions under the law; if it’s not, you can’t, and to some extent it’s as stark and clear as that.
Sort of, but not really! Land Registry has indicated that it will be functioning again on 8th June 2020, but it will probably still mean a reduced staff, a backlog, and increased turnaround times. It will also still be closed to law searchers and the public counter.
That said, we do seem to be moving to a position where the limited functionality that Land Registry was (barely) offering will be significantly increased, and this will certainly give solicitors a lot more confidence in the conveyancing process, allowing us to sign off on titles and cases where it was professionally not possible for us to do so.
Don’t forget, the reopening of Land Registry, whilst definitely a great development, is entirely separate to the issue of whether it will now be lawful to move house in all cases; for that we need the Northern Ireland Executive to lift or loosen some the restrictions in place.
Initially mortgage companies had (justified!) concerns about Land Registry’s closure and suspended many mortgage offers. At the moment, the issue now appears to be the inability to carry out physical surveys of properties, and it is hoped that if there is some loosening of restrictions around that in the next few weeks, the mortgage process as far as conveyancing goes should get back to normal. We are aware that there are probably still issues around mortgage products and availability, but you should speak to your mortgage adviser about that.
Whilst a particular adviser within the property industry (eg estate agent, mortgage adviser, surveyor etc) may be highly experienced in their field, the only person that you should be speaking to about the legal aspect of your house move (the conveyancing) is your solicitor. All of our conveyancing solicitors specialise in only residential conveyancing, our managing director is recognised as a leading figure in this area, and serves both on the Conveyancing and Property Committee of the Law Society of Northern Ireland, and on Law Society Council. You can be assured therefore that the advice that you receive about your conveyancing case will be based on the most up to date information, extensive experience of over 1,000 sale and purchase instructions each year, and ongoing dialogue with colleagues at the very heart of our industry. We’ve invested in our staff, our processes and our research to ensure that we can bring it all to bear to protect your interests – not our – your, our client.
Possibly. It certainly doesn’t seem that you are going to be in breach of the restrictions on movement, especially since your household isn’t changing or relocating.
Whether your case completes will depend a lot the practicalities of contract signing, agreeing a flexible completion date and how any mortgage lender will want us to work. We are certainly delighted to chat with you about various scenarios for this type of case.
Tricky. Essentially you will have an empty property which certainly helps from a social distancing point of view. The difficulty is going to be that you will still be moving from one house to another and it is our view that you may still be at significant risk of breaching the Regulations. This will be a matter for you to satisfy yourself on, although as we have mentioned in one of the other FAQs, we note that some lenders are now also starting to investigate whether individual borrowers’ house moves comply with the Regulations.
On a practical basis, one potential issue is the fact that Building Control departments of our local councils have indicated that they are not in a position to carry out final completion inspections at this time and, since that is increasingly a lender requirement, there may be some negotiation required in and around that issue. We can’t stress enough, however, that if you complete without a Building Control completion certificate, our experience over the past decade has been that you will have significantly more difficulty getting outstanding defects remedied by the developer once you have completed. You will have to consider carefully this really important issue and whether you really feel that you have to complete in circumstances where you are missing this vital protection. Once building inspectors and surveyors are able to safely inspect new build properties (and we expect developments on this in the coming weeks), then this will certainly assist the process.
As with the other questions, completion of a new build purchase will also depend on your mortgage lender’s attitude to the particular transaction.
For what it’s worth, we believe that the question of whether you should complete a new build purchase at this time is probably one of the more difficult questions to answer because regardless of the fact that the property is empty, we feel that most people will find it practically impossible physically to move into a property whilst still practising social distancing and preventing others who may be delivering to the property to be put at risk.
That depends. Obviously there is no physical movement of people, so the ability to complete your remortgage will come down to the view of your mortgage lender as to whether or not they are satisfied with the legal arrangements in circumstances where Land Registry is not functioning normally and other court offices which provide searches are to most intents and purposes, closed.
Bear in mind that there are essentially 2 types of remortgage. First, there is the remortgage where you instruct your own solicitor, you pay them for their services, and they act for both you and your mortgage company in full compliance with UK Finance Lenders’ Handbook. In that kind of case, your solicitor will have to negotiate directly with the lender in respect of the gaps in their requirements which way solicitors are unlikely to be able to fill. Some cases will proceed, and in some cases, the lender will not be satisfied with the potential risk, and may withdraw the mortgage.
For the sake of completeness, we would mention the so-called “free legal” products where the lender has their own panel solicitor who acts for them (and not you as the borrower) to complete the remortgage. In that type of scenario, the solicitor has a slightly different kind of relationship with the lender and the lender may be more willing to be flexible in terms of what they will require under the UK Finance Lenders’ Handbook.
There is no doubt that it is probably easier for cash purchasers to complete purchases at this time because there is less uncertainty in terms of having the finance in place to complete. If you are physically planning to move house, then you will have the same problem has everyone else in that the physical act of moving is likely to be a breach of the Regulations. If you’re not planning to move in immediately during the stay-at-home period, then the question simply falls back to the level of risk you are willing to undertake with your own money. Provided you are happy to complete with this level of risk (which we will discuss with you on a case-by-case basis, then you could complete with caution.
Since you are not physically moving house, there would not appear to be a breach of the Regulations and indeed, if you are purchasing a property with a sitting tenant, you are enabling the tenant to stay in their own home during this difficult period. In that case, therefore, as with our answers to the other questions, whether you can complete or not will be influenced on whether you have a mortgage lender, and if so, what their attitude will be to the recent difficulties with Land Registry and other court offices which are closed and therefore are unable to provide updated data. You will also have to be comfortable yourself with the potential legal risks that you will be undertaken in this kind of transaction.
Yes, but it’s hard to be definitive or exhaustive. You should try to see this not in terms of the kinds of cases, but the types of scenarios which those cases create. So, for example, we are often asked if a purchaser is buying from an estate of a deceased person and the property is empty, can this complete? The answer lies not in the fact that the owner of the property is deceased, or indeed that the property is empty, but in the fact that if the purchaser is planning to move physically into the property during the stay-at-home period, they may be in breach of the Regulations.
There is no doubt that there are certain scenarios in which conveyancing cases can complete in Northern Ireland at this time. We have completed a number of them. Additionally, we have completed conveyancing cases for frontline NHS workers where it has been clearly evident that there was a reasonable necessity for them physically to move house at this time and therefore comply with the exceptions to the restrictions on movement within the Regulations.
No. Northern Ireland Housing Executive have recently indicated that they have put a complete moratorium on all Right to Buy cases at the present time, regardless of what stage of the case has been reached. We understand that time limits for contract signature et cetera will not continue to run and we hope that we should be able to pick up where we left off when NIHE restart the scheme.
The Government guidance and the Law Society of Northern Ireland guidance are both in agreement and extremely clear on this point. If the parties are in a binding contract, then it is incumbent upon them and their solicitors to work flexibly to agree a completion date outside of the stay-at-home period. It would be hard for this statement to be much clearer but the reality is that parties are still under relentless pressure to complete house moves interact contravention of the guidance.
We have already seen cases over the past few weeks where our clients have been threatened with Notices to Complete and potential claims for specific performance if our client does not complete the conveyancing transaction on the date originally agreed notwithstanding that it is within the stay-at-home period. This is even the case where purchaser wishes to complete, but there lender has decided not to release funds. There is an evolving area of law regarding these types of situations and we feel confident that the courts will look sympathetically at these types of cases where specific performance has been demanded in circumstances where the breach of contract is not the direct fault of the defendant.
First, we would refer you to the previous question which explains the extremely serious legal consequences of being in a binding contract and then finding yourself unable to complete for reasons that may be entirely outside your own control. That should be enough to illustrate clearly to you why getting into contract at such an uncertain time is an extremely dangerous strategy.
The official guidance indicates that solicitors should in most circumstances not be putting their clients into contract until the overall position with stay-at-home periods, the position with Land Registry and the attitude of lenders are clarified and resolved. In fact, we would observe that in some scenarios, it may be seen to be negligent of a solicitor to allow your client to enter into a contract in circumstances where the surrounding factors in the property market are presently so unknown.
There may be some cases, which we would discuss with our clients on a case-by-case basis, where we would work with our clients to release a contract, albeit it would be conditional on numerous scenarios and would seek to give our client as much flexibility as possible to withdraw. The other party may not agree to this, and it would simply be a matter of negotiation. We would emphasise however that these cases would be exceptional.
We appreciate that many of the answers we have given in these FAQs seem to be negative and somewhat pessimistic, but we would stress that this period of living during a global pandemic is completely different from the types of issues that we encountered 13 or 14 years ago during the most recent property recession or indeed a decade before that when there was a property crash in the 1990s. This is completely uncharted territory for conveyancing and market confidence. The fact is however that we aim to come out of this period of uncertainty stronger than ever with enhanced systems of working including, were appropriate, virtual meetings and a host of new functionality on our conveyancing web app which allows our clients and their other advisers in the transaction and even greater level of interaction and transparency.
You can still obtain an accurate conveyancing fee quotation from our website or via one of our partners, we can be instructed online, we can start your case and we can prepare as much documentation and research as we can waiting for the appropriate time to release contracts and progress your case to completion.
We remain optimistic about the future, excited about your business, and absolutely focused on ensuring that on the return to normality (or some form thereof) we are ready willing and able to resume our role as one of the leading residential conveyancing law firms in Northern Ireland.