When and How to Serve a Notice to Complete — SCS Condition 6.8
SCS Condition 6.8 (residential) / SCPC Condition 9.8 (commercial): either party can serve a notice to complete where completion has not taken place on the contractual completion date and the serving party is ready, willing, and able to complete. Ready, willing, and able (RWA): ready = cleared funds in the solicitor's client account; executed transfer documents (TR1/AP1); willing = genuinely intends to complete on the contract terms; able = legally and practically capable of completing (e.g. seller's mortgage discharge in place or on notice to the lender). Invalid notice: a party who is themselves in breach (no cleared funds; cannot transfer good title) cannot validly serve a notice to complete — the notice will not make time of the essence and the serving party may be in breach. Effect: makes time of the essence; gives the defaulting party 10 business days (excluding weekends and bank holidays) to complete. Service method: document exchange, hand delivery, or first-class post; email is NOT effective under the standard SCS unless the contract expressly provides for email service (more common in commercial transactions; rare in residential); serve promptly — the 10-business-day period runs from the date of service. Special conditions: the contract may modify or extend the notice period by special conditions — review the contract carefully before serving.
Consequences of Non-Compliance and the Deposit Position
Buyer defaults after the notice to complete period expires: seller can (i) rescind the contract; (ii) forfeit the deposit (typically 10% of the purchase price — SCS Condition 7.5; treated as a genuine pre-estimate of loss; not an unenforceable penalty up to 10% — Dunlop Pneumatic Tyre Co v New Garage and Motor Co [1915]); (iii) re-sell the property; (iv) claim additional damages above the forfeited deposit (re-sale costs; price difference; agents' fees; additional legal costs); or (v) alternatively, sue for specific performance. Seller defaults after the notice to complete period expires: buyer can (i) rescind the contract; (ii) recover the full deposit plus interest at the contract rate from the contractual completion date (SCS Condition 7.6); (iii) claim damages (survey fees; legal costs; increased purchase price on alternative property); or (iv) alternatively, sue for specific performance. Simultaneous notices: both parties serve notices simultaneously — the notices cancel each other out; neither party can rescind on the basis of the other's notice; the parties must resort to court proceedings. Deposit held as stakeholder vs agent: under SCS Condition 2.2, the deposit is held as stakeholder (not released to the seller before completion) unless the contract provides otherwise; as agent, the seller can use the deposit to fund an onward purchase before completion — riskier for the buyer if the seller's purchase fails. Late completion compensation (SCS 7.2): a daily compensation rate for late completion without rescission — the appropriate route for short delays; a notice to complete is for substantial delays where the innocent party wants to reserve the right to rescind.