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House sale solicitor ping-pong

hc25036

pfm Member
Is there someone who has solved this problem and can help my increasingly distressed daughter? She is selling her shared-ownership (housing association flat) and both she and the buyer had to use a solicitor selected from a list of those approved by the HA. Daughter is working overseas, buyer is a nurse working shifts. I'm playing piggy in the middle with no permissions to bang legal heads together...

Late on ( 3-4 weeks) in the process, buyer's solicitor raises the issue of s106 planning and wants proof that no future liabilities could fall on the buyer. Seller's solicitor replies that planning documentation is down to the buyer according to the Law Society protocol (yes- I read the protocol and it says that planning documents are to be obtained by the buyer).

Buyer's solicitor replies that according to 'the protocol' it is the seller's responsibility. Seller's solicitor replies 'no it's not'. Stir well and repeat the exchange at least 4 times with at least a couple of days between each contact.

I did further research and the Conveyancing Society protocol says that s106 documents are down to the seller, but also says that in case of conflict the Law Society protocol wins. I can only assume there is a game of 'lawyer chicken' going on and the losers are my daughter who is paying a mortgage on an empty flat and the buyer who is about to lose her mortgage offer and will have to pay a second lot of fees.

Both have asked politely, by email, what is going on. Meantime we have contacted the Local Council for help. The development is huge and virtually complete, the developer is huge and still in business and a simple search shows that there are s106 approvals still in the process - both cases the developer asking for more time to complete works on public spaces before handing them over.

Any kind Fishies out there with some advice?
 
Why not just provide the buyer's solicitor with the info and get the deal done? Exchanges of letters berween solicitors just add to cost or reduce profit. If the buyers is keen to do a deal, suggest that in this respect the cost is shared?
 
The buyer needs to instruct their solicitor on what they want. Seller may need to communicate directly with buyer and explain what is needed. We should not always be bullied by solicitors.

Sometimes (we recently had to, with the in-laws moving) us sellers have to get tough and tell the buyer to pony up and exchange or we were pulling out, in 2 days. They did, all the prevarication suddenly disappeared.

You might think that is a big risk - but the buyer is well into the process too - solicitors, mortgage etc and the threat of losing the purchase can be quite powerful.
 
Your daughter is the client and needs to speak to her solicitor directly by phone. She needs to give clear instructions that they must resolve this by return and that she will not accept losing her buyer because of this.

At one time when I was buying a house, I dropped my offer by a grand because of an issue. The seller said that they would accept this if we exchanged the following day (we were advanced). When I spoke to my solicitor he said that it wasn't possible. I told him to make it happen. We exchanged the next day.
 
Unfortunately the personalities involved are rather meek and mild and suggesting getting assertive results in eye-rolling at gale force 9!

Daughter's solicitor has provided a link to 'the relevant documents' on the Council web site, but the buyer's solicitor then replied that those documents do not include proof that there will never be an s106 default leading to the Council chasing the buyer for money in the future. I'm not sure that document even exists, or whether it is down to the seller since it relates to the development and not the flat. Both have made clear to their solicitor that the sale is about to fall through, but that simply starts another round of ping-pong. The Council have been contacted to see what they have, but it won't be quick.
 
The key document is the s106 agreement. Modern section 106 agreement drafting practice normally excludes purchasers of individual dwellings (and the lenders on the individual houses) from liability for some or all of the s106 obligations. It’s worth reading the full s106 to check this. If it does, just get a full copy if you haven’t already and send it to the buyers solicitor, the council will usually be helpful. If you are not sure what it means, get advice.

TBH if it didn’t contain such a clause, your daughter’s solicitors when she bought the property should have advised her that it might become a problem. If they didn’t she could well have grounds for an action for negligence against them.

If the exclusion clause is missing it might be possible to get indemnity insurance particularly if the developer is one of the big national companies and low risk of going out of business, but I’m not really competent to advise whether this is really a possibility.
 
Thanks Andrew - it gets worse! We have found an 'Information for Solicitors' provided by the Housing Association that states very clearly that there is a Unilateral Agreement in place that states that no liability will fall on individual owners, and that reference to the agreement should be found in a conveyancing search. Sharp emails were sent to both solicitors this morning.

It turns out that the 'Information' document has been provided to the buyer's solicitor, but that they "won't take their word for it" and require a copy of the agreement - which seems not to be online and will take weeks to get hold of. So there is a dated, referenced document provided by the Housing Association providing reassurance, but it's not being accepted and will inevitably cause the sale to fall through as the buyer has had enough.

Incredibly, both solicitors are on a list of firms that the Housing Association insist must be used....
 
Thanks Andrew - it gets worse! We have found an 'Information for Solicitors' provided by the Housing Association that states very clearly that there is a Unilateral Agreement in place that states that no liability will fall on individual owners, and that reference to the agreement should be found in a conveyancing search. Sharp emails were sent to both solicitors this morning.

It turns out that the 'Information' document has been provided to the buyer's solicitor, but that they "won't take their word for it" and require a copy of the agreement - which seems not to be online and will take weeks to get hold of. So there is a dated, referenced document provided by the Housing Association providing reassurance, but it's not being accepted and will inevitably cause the sale to fall through as the buyer has had enough.

Incredibly, both solicitors are on a list of firms that the Housing Association insist must be used....
Are you sure it will take weeks? You could contact the local council, it will normally be the district council or whichever authority is your local planning authority. The s106 agreement is a document of planning record, they should have to hand = if possible talk to someone there in the planning department and explain the problem. Solicitors tend to send letters and wait for replies which is always a slow process, sometimes the personal touch can get things moving.
 
Thanks again Andrew - the Leader of the Council, who is a personal acquaintance, has been on the case since the weekend.There seems to be a separate 'Unilateral Undertaking' that is referred to in s106 documents and it is this document which seems to be the block. Meanwhile, other properties on the estate change hands pretty much every week. The buyer's lawyer flat out refuses to accept the 'information for solicitors' provided by the Housing Association that states that there is no s106 liability for owners.

Can you help with the dispute over conveyancing protocols? The seller's solicitor says that the Law Society conveyancing protocol says that s106 searches are down to the buyer (I've read the protocol and it does say that planning searches - which s106 documents are - are indeed down to the buyer).

The buyer has told me that her solicitor says that "the protocol" states that it is the seller that must provide s106 paperwork. I found the Conveyancing Society protocol that does indeed say that s106 is down to the seller, but it also says that if there is disagreement between the two protocols, the Law Society wins. I just wish I could get both of them in one room to hammer it out...
 
When I sold my company we were stalled for weeks into months as the solicitors, 90% theirs, kept bringing points up.
My guy was an experienced partner of the firm specialising in company sales at a company in Kent.
Theirs was a 'girl' nowhere near partnership who didn't seem to know what she was doing. 10 minutes out of Uni at a guess.
Time and again when we thought we were there she came up with something else and my guy came up with what I thought were reasonable points as to why she was wrong. Most proved to be the case.
We eventually all had to meet at their offices and hammered it out.
Unnecessary for normal humans. Necessary for solicitors.
There were a few open mouth moments you could not have scripted
 
I feel your pain. I'd better not post details of activity over the past couple of hours just in case this goes further. Let's just say as more comes to light my jaw is now permanently on my chest.
 
You don’t come out of uni a qualified solicitor.
You need to have completed a further 2 year training contract.
 
You don’t come out of uni a qualified solicitor.
You need to have completed a further 2 year training contract.

I also suspect their gender has no correlation with their apparent experience and/or competence. Shame it had to be referred to.
 
In my experience, small firms of solicitors engaged in real property sales and transfers are often near useless and see little beyond their pecuniary interest in delay and obfuscation.
 
Thanks again Andrew - the Leader of the Council, who is a personal acquaintance, has been on the case since the weekend.There seems to be a separate 'Unilateral Undertaking' that is referred to in s106 documents and it is this document which seems to be the block. Meanwhile, other properties on the estate change hands pretty much every week. The buyer's lawyer flat out refuses to accept the 'information for solicitors' provided by the Housing Association that states that there is no s106 liability for owners.

Can you help with the dispute over conveyancing protocols? The seller's solicitor says that the Law Society conveyancing protocol says that s106 searches are down to the buyer (I've read the protocol and it does say that planning searches - which s106 documents are - are indeed down to the buyer).

The buyer has told me that her solicitor says that "the protocol" states that it is the seller that must provide s106 paperwork. I found the Conveyancing Society protocol that does indeed say that s106 is down to the seller, but it also says that if there is disagreement between the two protocols, the Law Society wins. I just wish I could get both of them in one room to hammer it out...
The problem with protocols is that they are just guidelines at the end of the day, and it comes down to who is more keen to complete the sale, the buyer or the seller. If the buyer doesn’t want to complete, it’s almost impossible to make her. If a deposit has already changed hands, you might have a better case for hanging on to it on the basis that the buyer is being unreasonable in ignoring the Law Society guidelines, but you would need advice on that, I am a former lawyer, but was never a conveyancer.

If it is a newish development and you know who the developer is, it might be worth contacting their local office. I don’t think they would be under any obligation necessarily but they might have the undertaking on file if asked. Perhaps worth a try?
 
An email to the HA produced the required (we hope) document - strangely since the buyers solicitor had supposedly already contacted them. Thanks to everyone for their advice and commiserations!

The strategy of the buyer’s solicitor seems to have been to copy the search results to the seller and to demand all the documents, including many that had no relation to the property or even the development. The seller’s solicitor, after several rounds of emails trying to clarify what was really wanted, ended up sending an annotated copy of the law society guidelines back.
 
The problem with protocols is that they are just guidelines at the end of the day, and it comes down to who is more keen to complete the sale, the buyer or the seller. If the buyer doesn’t want to complete, it’s almost impossible to make her. If a deposit has already changed hands, you might have a better case for hanging on to it on the basis that the buyer is being unreasonable in ignoring the Law Society guidelines, but you would need advice on that, I am a former lawyer, but was never a conveyancer.

If it is a newish development and you know who the developer is, it might be worth contacting their local office. I don’t think they would be under any obligation necessarily but they might have the undertaking on file if asked. Perhaps worth a try?

Andrew - you’ve been very helpful. Many thanks indeed.
 


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