“Gaining Access to the Property after exchange of contract”
A Key undertaking is given by a conveyancing lawyer after contracts between the seller and buyer are exchanged to allow the purchaser access into the property. This access is usually required where the purchaser wishes to carry out work on the property. It will usually restrict the buyers from storing any items at the property.
There is no standard form of key undertaking and indeed a key undertaking can sometimes be complex. Usually it provides that access is only limited to the works referred to in a detailed schedule. Furthermore, the key undertaking will often specify that the buyer will be responsible for any services which are to be used at the property during the period of the key release.
Legally, there is no reason why you should not allow your Buyer access to the property to carry out agreed works provided a tightly drafted key undertaking is in place. A key undertaking sets out the basis on which the Buyer is entitled to access to the property and sets out exactly what can be and must not be done. If the Buyer was to breach the terms of the key understanding they would be in breach of a legally binding contract and it would be possible to pursue a claim against them in the Court.
In property law context an undertaking is an agreement or promise to do or provide something, or to refrain from doing or providing something, which is meant to be binding on the party giving the undertaking. An undertaking should never be given lightly and you should only agree to this kind of promise if you are sure that you are capable of keeping to the terms of the agreement.
A Key Undertaking could read as below:
In consideration of permitting access the Property between exchange of contracts and completion the purchase, for the purposes of:
Carrying out the works referred to in Schedule One hereto (“the Works”) and for no other reason, we hereby agree and undertake:
That access will not confer upon us any right of occupancy of the Property or import or imply any tenancy in our favour and prior to completion of the purchase of the Property that we will not place any furniture, fixtures or fittings or any of our belongings in or on any part of the Property and under no circumstances will this give rise to any proprietorship rights and we shall not take up occupation of the property or any part thereof.
That the keys to the Property will be collected by us from your Estate Agent, and we will hold the same strictly to your order pending Completion. No duplicate keys will be made nor will access be afforded without keys.
That we will not do anything that may adversely affect the Insurance under which the Property is covered.
That we assume full responsibility for the Property, for all persons entering the Property and for all the Works carried out in the Property from the date hereof and we shall pay for and indemnify you against all utilities charges outgoings and expenses of whatever nature relating to the Property and any claims from any persons entering the Property or any claims arising from or relating to the Works carried out in the Property from the date hereof.
That we enter the Property and carry out the Works solely at our risk and shall have no claims against you arising there from or in relation thereto.
That in the event that we default from completing the purchase of the Property:-
a) We shall have no claim whatsoever against you for compensation or payment or reimbursement for the Works that we have carried out in the Property or for any of the utilities bills, outgoings and expenses we have incurred or paid for the Property;
b) We shall pay (in addition to any interest and damages payable pursuant to contract) all costs and charges necessary to rebuild or to complete (to your surveyor’s satisfaction) any incomplete or unfinished works commenced by us, and to make good (to your surveyor’s satisfaction) any damage occasioned to the Property by reason of the Works or otherwise by reason of the right of access afforded to us, whether or not any such damage is occasioned by us or by any other person;
SCHEDULE ONE (list the works)
It should also be noted that in order to protect the Sellers’ interests a deposit should be paid on exchange out of which compensation can be claimed for any damage or alterations to the property should the matter subsequently not proceed and the contract be breached.
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