Q&As

If an agreed form of transfer is purportedly attached to an option agreement (‘the transfer to X will be in the agreed form annexed to this agreement’), but is not attached and in fact does not exist, does this affect the validity of the option agreement?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 08/04/2021

The following Property Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • If an agreed form of transfer is purportedly attached to an option agreement (‘the transfer to X will be in the agreed form annexed to this agreement’), but is not attached and in fact does not exist, does this affect the validity of the option agreement?

It is common for a contract that relates to land, such as an option agreement, to provide that the terms of the transfer in the event that a transfer is to take place under the terms of the contract, shall be in the form annexed to the contract. The purpose of such provision is to provide certainty and to ensure that there is no scope for disagreement as to the terms of the transfer. However, in this scenario it appears that the form of transfer was not in fact annexed to the option agreement and was not ever prepared.

The legal position in such a scenario will depend upon the precise circumstances relating to the contract. It may be the case that there are agreed terms for the form of transfer, but the document was not drawn up and annexed to the agreement. It is possible that there was no discussion or agreement at all

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