Gazumping happens when a buyer has had their offer accepted and has started on the conveyancing process, only to have the seller change their mind partway through and switch to a different buyer who has offered a higher price.
It is incredibly frustrating, not to mention expensive, as you will no doubt have incurred some costs in having a survey done, starting on the legal work and ordering searches.
The main reason a seller will consider gazumping is often simply that they have been offered more money for their property. Unfortunately, this can happen some considerable time after the start of a conveyancing transaction leaving you having to start again from scratch with a new property.
Gazumping can also happen because a transaction is taking too long and a seller decides to accept an offer from another buyer in the hope that they can complete more quickly.
Gazumping is legal, and estate agents are bound by law to pass on any offers they receive for a property. Until exchange of contracts, the agreement is not legally binding, and either party can pull out of a conveyancing transaction without any liability to the other.
Contracts will not be exchanged until all of the preliminary work has been carried out, including searches, a survey, investigation of the title by your solicitor, the asking and answering of enquiries and the issuing of a mortgage offer.
Once contracts have been exchanged, both you and the seller will be legally bound to complete the purchase, with penalties for breach of contract if either of you fails to do so.
While there is no guaranteed way to avoid gazumping, there are a number of steps you can take to minimise the risk of it happening to your purchase.
By doing as much as possible in advance, you will be in a strong position to proceed without delay once you have an offer accepted.
Speak to a conveyancing solicitor early on so that they can open a file for you and carry out the initial identity checks. You can also let them have funds ready for searches to be carried out as soon as they receive contract papers from your seller’s solicitor.
Arranging a mortgage in principle is also a good idea. Once you have chosen a lender, you can apply for a mortgage even before you have found a property to buy. This allows them to carry out most of the work straight away, including establishing your identity, going through identity checks and approving your application. Once you have a property to buy, you will let them have the details and they will be able to issue your mortgage offer more quickly than if they were starting the process from scratch.
Securing a mortgage decision in principle will also demonstrate to your seller and their estate agent right from the start that you are a serious buyer who is in a position to proceed.
Arranging a survey early on is also recommended, particularly in a busy market where surveyors are booked well in advance. Everything you can do to avoid a delay could help prevent your seller from feeling frustrated at a lack of progress.
At Lockings Solicitors, we always work proactively as soon as we receive contract papers in respect of a purchase, ordering searches and raising pre-contract enquiries straight away.
We keep in constant touch with other parties to ensure we know what is happening and to chase up issues where necessary, for example, if we are waiting to hear from a search provider or checking progress in respect of your related sale if you have one.
If difficulties arise, our team has the depth of experience to know how to deal with them efficiently and how to resolve even the most complex legal issues. We find that staying in touch and communicating effectively with estate agents and sellers’ solicitors goes a long way to keeping everyone invested in the transaction.
When you make your initial offer for the property, you can ask the estate agent to ask the buyer if they would be prepared to take the property off of the market. While this does not guarantee that another buyer will not come along, it can reduce the risk of gazumping if the estate agent is able to tell potential buyers that the home is not on the market.
A lock-in agreement or exclusivity agreement, sometimes referred to as a lock-out agreement, is a contract made between the buyer and seller at the start of a transaction after the seller accepts an offer. Each agrees to continue with the transaction and not to carry out certain activities, such as discussing a sale with another party.
A buyer will generally be required to move ahead promptly with searches and enquiries and to keep the seller’s solicitor advised as to progress.
If either party does not abide by the terms of the agreement, a set payment will generally have to be made to compensate the other.
While it may seem an ideal solution, a seller is unlikely to want to enter into a lock-in agreement in a strong sellers’ market.
In a strong buyers’ market, where there is a risk of gazundering (a buyer reducing their offer at the last minute) the seller is likely to be more open to a lock-in agreement.
If you are concerned that there is a risk that you will be gazumped and you want to avoid the potential financial loss, you can pay for an insurance policy that will cover you in the event you are gazumped.
One of the best ways of reducing the risk of gazumping is establishing a good relationship with your sellers via the estate agent. This can be particularly important in a strong sellers’ market.
Being easy going and relaxed over small details can help. While you will obviously need to deal with issues that arise, for example, in your survey or in respect of the legal title to the property, by taking a pragmatic view, you stand a better chance of a successful exchange and completion.
Being enthusiastic about a home the sellers probably love and not picking apart small defects will help them see you in a positive light. Letting the estate agent know (and pass on) how much you like certain aspects of the property and how much you’re looking forward to completion will help the sellers feel a connection with you.
If you are gazumped, it is open to you to raise your own offer. You may feel angry and cheated and be opposed to doing this, but it is open to you to consider whether it might be worth it in the long run. You will need to consider your finances carefully and look at the bigger picture – is the property worth it to you or could you walk away and find somewhere else equally as good?
If you have a good relationship with the estate agent, you can speak to them and try to negotiate if you are open to continuing. The seller may be prepared to accept a higher offer from you that matches or is even slightly less than the new potential buyer, as you are likely to be able to complete more quickly.
For more details about the buying and selling process, request our free conveyancing and property guide.
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