If you're buying or selling a home, you've probably heard the word "memorandum of sale" but aren't sure what it means.
A memorandum of sale is a key document that you'll face whether you're purchasing a new property or wanting to sell your house online. It's necessary for the sale to go through swiftly and properly.
The term "memorandum of sale" can confuse some, but here's all you need to know about it.
What Is a Memorandum of Sale?
A memorandum of sale is a document that is issued by the seller’s conveyancer or solicitor once the sale of a property has been agreed upon. It outlines all of the key details of the sale and is sent to the buyer’s conveyancer or solicitor.
The memorandum of sale is an important document as it officially starts the conveyancing process. Once the buyer’s conveyancer or solicitor has received the memorandum of sale, they will begin to carry out the necessary checks on the property.
The memorandum of sale will also confirm the price that has been agreed upon for the property and the names of the parties involved in the sale. It is important to note that the memorandum of sale is not a legally binding document, but it is a key step in the conveyancing process.
What Details Are Included in a Memorandum of Sale?
The memorandum of sale comprises information about the parties involved in the property sale, such as the buyer, seller, and their acting conveyancing solicitors, as well as their addresses and contact information.
Most Memorandums of Sale also include the following details:
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Details about the property in question, including the exact address and tenancy (freehold or leasehold)
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The property's agreed-upon price
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Confirmation of any specified completion criteria that the parties may have
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What fixtures and fittings will be available for purchase
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The amount of the deposit for the property
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Confirmation of whether the potential buyer will pay cash for the property or obtain financing through another method, such as a mortgage
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The names and contact information for the mortgage brokers/advisers involved in the sale
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The memorandum is accompanied by the energy performance certificate, which is required by law to sell the property
As you can see, the memorandum of sale can give important transaction information and is delivered at the start of the deal so that the legalities of the transaction can advance without delay.
Who Issues the Memorandum of Sale?
The seller’s agent is responsible for sending the memorandum of sale. In the case that the seller is selling a property privately, the seller may have to prepare the memorandum of sale themselves.
However, this is not recommended as the seller may make an error in the information they provide, which could lead to a legal dispute. The memorandum of sale is usually sent to the buyer’s solicitor and the mortgage lender if the buyer has one. The buyer’s solicitor is the only person who can receive the memorandum of sale.
When is a Memorandum of Sale Issued?
A memorandum of sale is usually issued once the buyer and seller have verbally agreed on the sale price of the property. The memorandum of sale is then sent to the buyer’s conveyancer or solicitor so that they can start the conveyancing process.
Is a Memorandum of Sale Legally Binding?
A memorandum is an agreement between two parties that is not legally binding. This type of agreement is often used to clarify the terms of an agreement before it is put into place. A memorandum can be thought of as a gentleman's agreement, without the handshake. This type of agreement also gives both parties the chance to check that they are satisfied with the terms of the agreement before legally committing themselves.
But don't be misled: some sorts of memorandum can be legally binding, although a Memorandum of Sale is not. This is because, in the United Kingdom, we use a Memorandum of Understanding rather than a Memorandum of Agreement when selling property. These are the legally binding MOAs to be on the lookout for!
What Happens After the Memorandum of Sale Is Issued?
Once the memorandum of sale has been issued, the buyer’s conveyancer or solicitor will begin the process of carrying out checks on the property. This includes checking the title deeds, carrying out a local search and checking for any planning permissions that may be required.
The buyer’s conveyancer or solicitor will also request a copy of the energy performance certificate (EPC) from the seller. An EPC is a document that provides information on the energy efficiency of a property.
Once all of the checks have been carried out and the buyer is happy to proceed, they will then make an offer on the property. This offer will be sent to the seller’s conveyancer or solicitor, who will then pass it on to the seller.
If the seller accepts the offer, then the conveyancing process will continue. If the seller rejects the offer, then the buyer’s conveyancer or solicitor will try to negotiate a better price on their behalf.
Common Issues With a Memorandum of Sale and How to Solve Them
1. The Memorandum of Sale Doesn't Include All of the Necessary Information
If the memorandum of sale does not include all of the necessary information, this can cause delays in the conveyancing process. It is important to check that all of the relevant information is included in the memorandum of sale before proceeding.
2. The Property is Not Ready to Be Sold
If the property is not ready to be sold, then the buyer and the seller will need to agree on a date for the completion of the sale. The completion date is the date on which the buyer will take ownership of the property.
3. The Buyer's Mortgage is Not Yet Approved
If the buyer’s mortgage is not yet approved, then the buyer will need to provide the seller with a mortgage in principle. A mortgage in principle is a document from a lender which states that they are willing to lend a certain amount of money to the buyer.
4. The Buyer Has Not Yet Instructed a Conveyancer of Solicitor
If the buyer has not yet instructed a conveyancer or solicitor, then they will need to do this as soon as possible. The conveyancer or solicitor will be responsible for carrying out the necessary checks on the property and will also handle the negotiation of the sale price.
5. The Seller Has Not Yet Instructed a Conveyancer of Solicitor
If the seller has not yet instructed a conveyancer or solicitor, then they will need to do this as soon as possible. The conveyancer or solicitor will be responsible for preparing the memorandum of sale and will also handle the negotiation of the sale price.
Conclusion
A memorandum of sale is a document that outlines the terms of a property sale between a buyer and a seller. This document is typically prepared by the seller's solicitor and contains important information such as the purchase price, the names of the parties involved, and a description of the property. The memorandum of sale is a key step in the conveyancing process and helps to protect the interests of both the buyer and the seller.
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