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prejudice to the claims of either seller or buyer for
breach of this condition g9.
G10.
Interest and apportionments
g10.1 if the actual completion date is after the agreed
completion date for any reason other than the seller's
default the buyer must pay interest at the interest rate
on the price (less any deposit paid) from the agreed
completion date up to and including the actual
completion date.
g10.2 subject to condition g11 the seller is not obliged to
apportion or account for any sum at completion unless
the seller has received that sum in cleared funds.
The seller must pay to the buyer after completion
any sum to which the buyer is entitled that the seller
subsequently receives in cleared funds.
g10.3 income and outgoings are to be apportioned at actual
completion date unless:
· (a) the buyer is liable to pay interest; and
· (b) the seller has given notice to the buyer at any time
up to completion requiring apportionment on the date
from which interest becomes payable by the buyer;
· in which event income and outgoings are to be
apportioned on the date from which interest becomes
payable by the buyer.
g10.4 apportionments are to be calculated on the basis that:
· (a) the seller receives income and is liable for outgoings
for the whole of the day on which apportionment is to
be made;
· (b) annual income and expenditure accrues at an equal
daily rate assuming 365 days in a year, and income and
expenditure relating to some other period accrues at
an equal daily rate during the period to which it relates;
and
· (c) where the amount to be apportioned is not known at
completion apportionment is to be made by reference
to a reasonable estimate and further payment is to
be made by seller or buyer as appropriate within five
business days of the date when the amount is known.
G11.
Arrears
Part 1 Current rent
g11.1 "Current rent" means, in respect of each of the tenancies
subject to which the lot is sold, the instalment of rent
and other sums payable by the tenant in advance on the
most recent rent payment date on or within four months
preceding completion.
g11.2 if on completion there are any arrears of current rent the
buyer must pay them, whether or not details of those
arrears are given in the special conditions.
g11.3 Parts 2 and 3 of this condition g11 do not apply to
arrears of current rent.
Part 2 Buyer to pay for arrears
g11.4 Part 2 of this condition g11 applies where the special
conditions give details of arrears.
g11.5 The buyer is on completion to pay, in addition to any
other money then due, an amount equal to all arrears of
which details are set out in the special conditions.
g11.6 if those arrears are not old arrears the seller is to assign
to the buyer all rights that the seller has to recover those
arrears.
Part 3 Buyer not to pay for arrears
g11.7 Part 3 of this condition g11 applies where the special
conditions:
· (a) so state; or
· (b) give no details of any arrears.
g11.8 while any arrears due to the seller remain unpaid the
buyer must:
(a) try to collect them in the ordinary course of
management but need not take legal proceedings or
forfeit the tenancy;
(b) pay them to the seller within five business days of
receipt in cleared funds (plus interest at the interest rate
calculated on a daily basis for each subsequent day's
delay in =);
(c) on request, at the cost of the seller, assign to the
seller or as the seller may direct the right to demand and
sue for old arrears, such assignment to be in such form
as the seller's conveyancer may reasonably require;
(d) if reasonably required, allow the seller's conveyancer
to have on loan the counterpart of any tenancy against
an undertaking to hold it to the buyer's order;
(e) not without the consent of the seller release any
tenant or surety from liability to pay arrears or accept a
surrender of or forfeit any tenancy under which arrears
are due; and
(f) if the buyer disposes of the lot prior to recovery of
all arrears obtain from the buyer's successor in title a
covenant in favour of the seller in similar form to part 3
of this condition g11.
g11.9 where the seller has the right to recover arrears it must
not without the buyer's written consent bring insolvency
proceedings against a tenant or seek the removal of
goods from the lot.
G12.
Management
g12.1 This condition g12 applies where the lot is sold subject
to tenancies.
g12.2 The seller is to manage the lot in accordance with its
standard management policies pending completion.
g12.3 The seller must consult the buyer on all management
issues that would affect the buyer after completion (such
as, but not limited to, an application for licence; a rent
review; a variation, surrender, agreement to surrender or
proposed forfeiture of a tenancy; or a new tenancy or
agreement to grant a new tenancy) and:
· (a) the seller must comply with the buyer's reasonable
requirements unless to do so would (but for the
indemnity in paragraph (c)) expose the seller to a
liability that the seller would not otherwise have, in
which case the seller may act reasonably in such a way
as to avoid that liability;
· (b) if the seller gives the buyer notice of the seller's
intended act and the buyer does not object within five
business days giving reasons for the objection the
seller may act as the seller intends; and
· (c) the buyer is to indemnify the seller against all loss
or liability the seller incurs through acting as the buyer
requires, or by reason of delay caused by the buyer.
G13.
Rent deposits
g13.1 This condition g13 applies where the seller is holding
or otherwise entitled to money by way of rent deposit in
respect of a tenancy. in this condition g13 "rent deposit
deed" means the deed or other document under which
the rent deposit is held.
g13.2 if the rent deposit is not assignable the seller must on
completion hold the rent deposit on trust for the buyer
and, subject to the terms of the rent deposit deed,
comply at the cost of the buyer with the buyer's lawful
instructions.
g13.3 otherwise the seller must on completion pay and assign
its interest in the rent deposit to the buyer under an
assignment in which the buyer covenants with the seller
to:
· (a) observe and perform the seller's covenants and
conditions in the rent deposit deed and indemnify the
seller in respect of any breach;
· (b) give notice of assignment to the tenant; and
· (c) give such direct covenant to the tenant as may be
required by the rent deposit deed.
G14.
VAT
g14.1 where a sale condition requires money to be paid
or other consideration to be given, the payer must
also pay any VAT that is chargeable on that money or
consideration, but only if given a valid VAT invoice.
g14.2 where the special conditions state that no VAT option
has been made the seller confirms that none has been
made by it or by any company in the same VAT group
nor will be prior to completion.
G15.
Transfer as a going concern
g15.1 where the special conditions so state:
· (a) the seller and the buyer intend, and will take all
practicable steps (short of an appeal) to procure, that
the sale is treated as a transfer of a going concern; and
· (b) this condition g15 applies.
g15.2 The seller confirms that the seller
· (a) is registered for VaT, either in the seller's name or as
a member of the same VAT group; and
· b) has (unless the sale is a standard-rated supply) made
in relation to the lot a VAT option that remains valid and
will not be revoked before completion.
g15.3 The buyer confirms that:
· (a) it is registered for VaT, either in the buyer's name or
as a member of a VAT group;
· (b) it has made, or will make before completion, a VAT
option in relation to the lot and will not revoke it before
or within three months after completion;
· (c) article 5(2B) of the Value added Tax (special
Provisions) order 1995 does not apply to it; and
· (d) it is not buying the lot as a nominee for another
person.
g15.4 The buyer is to give to the seller as early as possible
before the agreed completion date evidence:
· (a) of the buyer's VAT registration;
· (b) that the buyer has made a VAT option; and
· (c) that the VAT option has been notified in writing to
hm revenue and Customs; and if it does not produce
the relevant evidence at least two business days before
the agreed completion date, condition g14.1 applies
at completion.
g15.5 The buyer confirms that after completion the buyer
intends to:
· (a) retain and manage the lot for the buyer's own
benefit as a continuing business as a going concern
subject to and with the benefit of the tenancies; and
· (b) collect the rents payable under the tenancies and
charge VAT on them
g15.6 if, after completion, it is found that the sale of the lot is
not a transfer of a going concern then:
· (a) the seller's conveyancer is to notify the buyer's
conveyancer of that finding and provide a VAT invoice
in respect of the sale of the lot;
· (b) the buyer must within five business days of receipt
of the VAT invoice pay to the seller the VAT due; and
· (c) if VAT is payable because the buyer has not
complied with this condition g15, the buyer must
pay and indemnify the seller against all costs, interest,
penalties or surcharges that the seller incurs as a result.
G16.
Capital allowances
g16.1 This condition g16 applies where the special conditions
state that there are capital allowances available in
respect of the lot.
g16.2 The seller is promptly to supply to the buyer all
information reasonably required by the buyer in
connection with the buyer's claim for capital allowances.
g16.3 The value to be attributed to those items on which capital
allowances may be claimed is set out in the special
conditions.
g16.4 The seller and buyer agree:
· (a) to make an election on completion under section
198 of the Capital allowances act 2001 to give effect
to this condition g16; and
· (b) to submit the value specified in the special
conditions to hm revenue and Customs for the
purposes of their respective capital allowance
computations.
G17.
Maintenance agreements
g17.1 The seller agrees to use reasonable endeavours to
transfer to the buyer, at the buyer's cost, the benefit of
the maintenance agreements specified in the special
conditions.
g17.2 The buyer must assume, and indemnify the seller in
respect of, all liability under such contracts from the
actual completion date.
G18.
Landlord and Tenant Act 1987
g18.1 This condition g18 applies where the sale is a relevant
disposal for the purposes of part i of the landlord and
Tenant act 1987.
g18.2 The seller warrants that the seller has complied with
sections 5B and 7 of that act and that the requisite
majority of qualifying tenants has not accepted the offer.
G19.
Sale by practitioner
g19.1 This condition g19 applies where the sale is by a
practitioner either as seller or as agent of the seller.
g19.2 The practitioner has been duly appointed and is
empowered to sell the lot.
g19.3 neither the practitioner nor the firm or any member
of the firm to which the practitioner belongs has any
personal liability in connection with the sale or the
performance of the seller's obligations. The transfer is to
include a declaration excluding that personal liability.
g19.4 The lot is sold:
· (a) in its condition at completion;
· (b) for such title as the seller may have; and
· (c) with no title guarantee; and the buyer has no
right to terminate the contract or any other remedy
if information provided about the lot is inaccurate,
incomplete or missing.
g19.5 where relevant:
· (a) the documents must include certified copies of
those under which the practitioner is appointed,
the document of appointment and the practitioner's
acceptance of appointment; and
· (b) the seller may require the transfer to be by the
lender exercising its power of sale under the law of
Property act 1925.
g19.6 The buyer understands this condition g19 and
agrees that it is fair in the circumstances of a sale by a
practitioner.
G20.
TUPE
g20.1 if the special conditions state "There are no employees
to which TUPE applies", this is a warranty by the seller to
this effect.
g20.2 if the special conditions do not state "There are no
employees to which TUPE applies" the following
paragraphs apply:
· (a) The seller must notify the buyer of those employees
whose contracts of employment will transfer to the
buyer on completion (the "Transferring Employees").
This notification must be given to the buyer not less
than 14 days before completion.
· (b) The buyer confirms that it will comply with its
obligations under TUPE and any special conditions in
respect of the Transferring Employees.
· (c) The buyer and the seller acknowledge that pursuant
and subject to TUPE, the contracts of employment
between the Transferring Employees and the seller will
transfer to the buyer on completion.
· (d) The buyer is to keep the seller indemnified
against all liability for the Transferring Employees after
completion.
G21.
Environmental
g21.1 This condition g21 only applies where the special
conditions so provide.
g21.2 The seller has made available such reports as the
seller has as to the environmental condition of the
lot and has given the buyer the opportunity to carry
out investigations (whether or not the buyer has read
those reports or carried out any investigation) and the
buyer admits that the price takes into account the
environmental condition of the lot.
g21.3 The buyer agrees to indemnify the seller in respect of all
liability for or resulting from the environmental condition
of the lot.
G22.
Service Charge
g22.1 This condition g22 applies where the lot is sold subject
to tenancies that include service charge provisions.
g22.2 no apportionment is to be made at completion in
respect of service charges.
Common auction Conditions