By Dr Celine Cuschieri Debono – Junior Associate
You want to buy a house and have been on the lookout for one for quite a while. An ad pops up and it is exactly what you are looking for. You contact the seller to see if the property is still available and much to your elation, it is. You set up a meeting at the property so that you may see it with your own eyes. The seller and yourself agree on the price and on the conditions of the sale.
A few weeks later you meet up at the Notary’s office and you sign the promise of sale (konvenju). As part of the conditions of sale, you agree that you are to conduct searches on the property at your expense. The promise of sale stipulates the final deed of sale is to take place within four months from the date of the promise of sale. You are eager to get the ball rolling so you instruct your Notary to conduct the necessary searches so that everything is ready for the final deed of sale to take place.
The deadline for the conclusion of the final deed fast approaches, and while the seller used to respond to your calls and messages immediately, now he is nowhere to be found and nowhere to be reached. You keep trying to contact the seller but to no avail.
What can you do at this stage? Is all hope lost? The short answer is that ‘no, not all hope is lost’. The crux of the matter is using the remedy afforded by the law before the promise of sale expires. Essentially, whenever a party to a promise of sale wishes to enforce it against the other party, first he or she must send a judicial letter to the other party demanding that the other party appears on the final deed. Then, one has thirty days from the letter within which to initiate judicial proceedings against the other party so that the Court orders him or her to appear on the final deed. For such action to be successful, the plaintiff must convince the Court that there is no valid reason at law for the final deed not to take place.
Therefore, what one must keep in mind is that in to ‘force’ the other party to appear on the final deed, he or she cannot wait until after the promise of sale has expired. This is because once it expires, it loses validity in the eyes of the law and therefore cannot be enforced. Once the promise of sale expires, the option at one’s disposal is to sue the other party for damages incurred due to their lack of appearance on the final deed.