Q&As

Prior to the exchange of contracts, a developer agreed in correspondence marked ‘subject to contract’ to clear rubble and erect a fence. This term, along with several other terms relating to snagging issues (including tiling etc) were not expressly referred to in the contract. Do all terms have to be included in the contract for sale, where eg the developer has failed to clear rubble and erect fence, or is it possible to bring an action against the developer on the basis that this was a collateral contract?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 11/08/2020

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:

  • Prior to the exchange of contracts, a developer agreed in correspondence marked ‘subject to contract’ to clear rubble and erect a fence. This term, along with several other terms relating to snagging issues (including tiling etc) were not expressly referred to in the contract. Do all terms have to be included in the contract for sale, where eg the developer has failed to clear rubble and erect fence, or is it possible to bring an action against the developer on the basis that this was a collateral contract?

In order for a contract for the sale of property to be valid, it is necessary to comply with the formalities of section 2 of the Law of Property Act 1925 (LPA 1925). This requires the contract to be made in writing and must incorporate all the terms which the parties have expressly agreed in one document, or, where contracts are exchanged, in each document. By LPA 1925, s 2(2), the terms may be incorporated in a document either by being set out in it or by reference to some other document. Each party must also sign the document or counterparts. Therefore, anything that was agreed but not incorporated into the written contractual docum

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