When it comes to purchasing a property through a pre-sale agreement, many buyers may consider transferring their pre-sale contract to another individual before the agreement’s completion. This process is known as a pre-sale assignment. However, navigating pre-sale assignments can be complex, and it’s crucial to understand the ins and outs of this process to avoid any surprises down the road. In this blog, we will explain what a pre-sale assignment is, what factors you should consider, and why seeking professional advice is key.
What Is a Pre-sale Assignment?
A pre-sale assignment occurs when you transfer the rights to your pre-sale contract to another party before the contract’s completion date. This may happen when you no longer wish to proceed with the purchase or when the market conditions allow you to sell the contract for a profit (or a loss). The price at which you assign the contract to the new purchaser may differ from the original price you had agreed to with the developer.
Important Note: The seven-day right to cancel that typically applies to a pre-sale contract does not apply to the new buyer through an assignment. This means once the contract is assigned, the new purchaser doesn’t have the same cancellation rights as you did when you first entered into the agreement.
Key Things to Check in Your Pre-sale Contract
Before deciding to go ahead with a pre-sale assignment, it’s critical to review your pre-sale contract thoroughly. Here are some key points to confirm:
- Are Assignments Permitted? Not all pre-sale contracts allow for assignments. Some developers may include clauses that restrict the ability to assign the contract to another party.
- Do You Need Developer Consent? Many developers require that you obtain written consent from them before you can assign your pre-sale contract to another buyer. Make sure to check if this is a requirement in your contract. Without consent, the assignment may not be possible.
- Are Assignment Fees Involved? Some developers charge an assignment fee for consenting to the transfer of the contract. The fee structure and amounts should be clarified in your pre-sale agreement, so you are aware of any additional costs you may incur.
What Happens If the Developer Refuses Consent?
One of the most important things to note is that even if you find a buyer who is interested in taking over your pre-sale contract, the developer has the right to refuse consent to the assignment.
If the developer refuses to consent, you may be obligated to complete the purchase yourself. If you’re unable to do so, you risk being in default of the pre-sale contract. The consequences of defaulting may include:
- Losing your deposit.
- Being liable for other costs or losses that the developer may incur due to your failure to follow through with the purchase.
In short, refusing to complete the purchase could have serious financial implications for you.
What if the Assignment Is Approved?
If the developer does approve the assignment and agrees to let you transfer your pre-sale contract to another buyer, the process typically involves paying the assignment fee (if applicable). However, it’s important to remember that the responsibility does not always end with the assignment.
In cases where the person you assign the contract to is unable to complete their purchase, you may still be held liable to the developer for fulfilling the purchase yourself. This means that even after assigning the contract, you may have to step in and complete the purchase if the new buyer backs out.
Why You Should Seek Independent Professional Advice
Before entering into any pre-sale assignment agreement, it’s essential to seek independent professional advice. A real estate lawyer or professional advisor can help you navigate the complexities of the assignment process and ensure that you’re fully aware of your rights, obligations, and any potential risks.
A legal professional can also assist with reviewing your pre-sale contract, ensuring that it complies with all applicable laws, and providing guidance if you’re faced with a developer’s refusal to consent to an assignment.
In Conclusion
Pre-sale assignments can be an excellent option for some buyers, but they come with potential risks and legal nuances that must be carefully considered. Always remember to:
- Review your contract to confirm assignment permissions, consent requirements, and fees.
- Understand the developer’s right to refuse consent.
- Be aware of your ongoing liabilities even after the assignment is complete.
Navigating the pre-sale assignment process with the help of independent professional advice will give you peace of mind and protect you from unexpected complications.
