Seller left personal property in house - what can you legally do?
20/07/2018
After waiting so long to buy your property it can be disappointing to find that when you finally move in on the day of completion that the seller has left behind their personal possessions. In our article, What Happens on Completion Day, we explain what you need to do when you move into your new home and one of the top things is to check the house/flat for any items the seller has left behind.
In residential conveyancing, unless you are intending to become a Buy to Let landlord, you can expect, on the date and time you've set for completion, to have what's known as vacant possession of your property (click to find out more): this means that the seller should have removed everything from the house which wasn't previously agreed to be part of the sale (they legally have to leave bulbs and ceiling roses but that's about it) and additionally, there should be no tenants living within the property.
In this article we run through, what you can do to get the items removed, if the property is now yours and what are the costs for getting the seller to remove their personal possessions.
Top tip: Inspect the property the day before, or on the day of completion
If you are worried the seller is going to leave the property with items in it then you should organise a 'final inspection' before the day of completion, or organise to be at the property on the day of completion before your solicitor completes with the seller - you will see very clearly if the seller is ready to move or not.
If the seller isn't ready, inform your solicitor and they will hold off formally completing with the seller's solicitor until the seller removes their personal possessions from the property. If the seller doesn't do this then they face the costs of failing to complete.
If completion has already taken place then read on to find out what you can do.
What can the seller 'legally' leave in the property?
During the purchase of the property the seller provided you the TA10 Fittings and Contents Form which sets out the items that the seller is including within the sale price and which will be left behind. It states within the Fittings and Contents form "The aim of this form is to make clear to the buyer which items are included in the sale. It must be completed accurately by the seller as the form may become part of the contract between the buyer and seller".
The buyer should always inform their solicitor if they have agreed directly with the seller to include any items within the sale price that aren't stated in the Fittings and Contents form, otherwise the buyer could be faced with a legal battle if these haven't been left in the property.
As soon as you move in you should use the Fittings and Contents Form to tick off the items that should be left in the property, and those that the seller should remove. If there are any items left that shouldn't be there you must take photos in case you need them as evidence in a future claim (see below 'Can I claim for the loss of disposing the seller's property?').
What happens if the items are damaged when you move in?
If any item that is listed as 'included' within the Fittings and Contents form is broken when you move in, or in a worse condition that when you saw it then you may have a claim against the seller. The challenge you face is confirming the condition of the property which is why it is best to always review each individual item that is going to be included in the purchase price to confirm the condition and, if a mechanical item, that the item works.
You should also speak to the seller to ask them to provide warranties and guarantees for any mechanical items like dishwashers and washing machines so that you can transfer the warranty into your name (or check to see if this is possible).
What should you do if the seller has left rubbish / junk in the house?
Whether the items left behind were rubbish or a brand new sofa, these items still belong to the seller and as such the seller should organise to collect these at their own cost. The most common areas where a seller may have accidentally, or on purpose, left items are:
- Loft
- Garage
- Shed
The legal position is as follows:
"Unless stated otherwise, the seller will be responsible for ensuring that all rubbish is removed from the property (including from the loft, garden, outbuildings, garages and shed), and that the property is left in a reasonably clean and tidy condition"
If the seller fails to meet with their responsibility then the buyer has a right to pursue the seller for the costs of removing the rubbish.
Can a seller sell items for an additional cost on top of the purchase price?
There are two ways items can be given by the seller to the buyer, either:
- marked as 'Included' within the Fixtures and Contents form as part of the sale price; or
- listed, either separately or within the Fixtures and Contents form, with an agreed price per item.
Items that are sold on at an additional cost are called 'Chattels'. Chattels are defines by HMRC as "item of tangible, movable property – something you can both touch and move". You can read more on this here - HMRC Guidance on Chattels.
What happens if the seller won't collect their property?
From a legal stand point, the ownership of property left behind still belongs to the seller. You are required to inform the lender of the items that are left at your property in writing. In your letter you should confirm to the seller that you are storing the items on their behalf for a period of time at a cost. After this time the items will be removed or kept by you.
Can I claim for the loss of disposing the seller's property?
Yes you can, however whether you wish to pursue this yourself or through the legal system requires you to assess the loss you have incurred through disposing the seller's items. Depending on the amount of items the losses you incur could be one or some of the below:
- overnight stay at a hotel (if the property was uninhabitable - to prove this you would need photos and videos to evidence the property was uninhabitable. You would also be expected to get the property to be made habitable as quickly as possible so that you limit the loss)
- petrol to drop the items at the local tip
- 6 yard skip at a cost of £200-£250
- storage costs for looking after the seller's property (research what a local storage company would charge and to ensure you have a reasonable figure obtain 3 quotes for a daily rate of storage). You should note that if the seller doesn't respond after a number of days has passed then you would be expected to either keep the items as your own or dispose of them as it is not reasonable to charge a seller, without their consent to the cost, to store items with a storage cost that is in excess of the costs to dispose the items.
Important: If you have paid something that forms part of your total loss then you must keep the receipt to evidence the loss
Once you know your total loss you can decide whether to instruct a litigation solicitor or pursue the seller yourself. For losses under £500 you may find it more cost effective to seek settlement through a small claims court application yourself as it'll cost you legal fees to instruct a solicitor who will normally charge between £200 to £300 per hour plus VAT and their costs are not reclaimable within small claims.
My conveyancing solicitor won't help me?
Solicitors or conveyancers normally specialise in one area of law which for you will have been conveyancing. If you decide to seek settlement of a loss then you need a litigation solicitor which is a different area of law and most solicitors don't specialise in both conveyancing and litigation.
If you find that your solicitor won't help you pursue a claim, then they should agree to send a communication to the seller's solicitor listing the items left in the property.
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