After delay, can I serve a "notice to complete"?

I am in the process of buying a house and the seller is also buying a new build. We exchanged in August with an "on notice" completion. The seller's house completion has been delayed with no definite date. Can I serve a "notice to complete"?
Question: I am in the process of buying a house. The seller, in turn, is buying a new build. We exchanged in August with an "on notice" completion, on the understanding that the completion date of the seller's new build would be in the third week of August, while completion for our house would be about September 15.

However, the seller's completion has been delayed three times and there is still no definite date. Can I serve a "notice to complete" and get them to move out and complete or I get my deposit and costs back? My solicitor did not warn me of the drawbacks of "on notice" completion and did not include a drop dead date to complete on the contract, which in my opinion, in hindsight, he should have.

Answer: Completion on notice is usual when a new-build property is involved. It is quite uncommon for completion to be on notice when the property is not a new build, as buyers often do not like the uncertainty of completion on notice.

Your solicitor certainly should have advised you of the issues which can arise when completion is on notice — especially when notice to you is dependent on notice being served on your seller.

If the contract between you and your seller had included a long stop date, it would probably have made it more straightforward for you to enforce the terms of the contract. Without knowing the terms, though, it is difficult to comment. Your solicitor could try writing to the seller's solicitor requiring completion by a certain date. If that fails, he could ask for you to be released from the contract and for your deposit to be returned, or serve a notice to complete.

If that doesn't work there are remedies available, such as rescission of contract or specific performance, but these are likely to be complex and costly. You may end up having to seek advice from a lawyer specialising in property litigation.

If you have a question for Fiona McNulty, please email legalsolutions@standard.co.uk or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually but we will try to feature them here. Fiona McNulty is a partner in the residential property, farms and estates team at Withy King LLP (withyking.co.uk).

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