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  • FIRST POST
    • Lkp21
    • By Lkp21 14th Nov 17, 7:53 PM
    • 3Posts
    • 1Thanks
    Lkp21
    Solicitor exchanged without following mortgage advice
    • #1
    • 14th Nov 17, 7:53 PM
    Solicitor exchanged without following mortgage advice 14th Nov 17 at 7:53 PM
    Hi,

    Hoping someone may be able to help. 🤞🏻
    We are buying a new house and the lenders valuation came back with some concerns and asked for a structural engineers report OR a chartered buildings surveyors report.
    We paid for a Chartered Survey report which we sent off to the solicitor on 30th October. On 6th November we were informed that we had exchanged. With a completion date of 24th November. Presuming everything was in place.
    On 7th November our solicitor asked for the report from the Chartered surveyor. We informed her this had been sent over a week ago. The 8th November we received notification that the lenders were not happy with report and wanted a structural engineers report. Conveniently our solicitor wasn’t working on the Thursday so we rushed to find someone to get this report done. Also arguing that the lenders had state either report in the written mortgage offer sent to us and solicitor.
    Today we received the structural engineers report and this has been forwarded to the solicitor however there is structural work that needs addressing with costs between £7,500-£10,000.
    Now we are worried, concerned and frustrated that the lenders will not lend us the money to complete. On speaking to our financial advisor he thinks they will retain that money until works have been done but we do not have this money.
    Surely our solicitor shouldn’t have exchanged before this was sorted. Where do we stand if lenders do withhold money. Could we claim negligence through our solicitor?
Page 1
    • jbainbridge
    • By jbainbridge 14th Nov 17, 8:00 PM
    • 1,730 Posts
    • 1,123 Thanks
    jbainbridge
    • #2
    • 14th Nov 17, 8:00 PM
    • #2
    • 14th Nov 17, 8:00 PM
    The solicitor's job is to make sure everything is ok BEFORE exchange. I'd be asking the solicitor what they are going to do about it.

    Were you aware that you were exchanging contracts? Normally you would be contacted before this happens.
    • dpearson86
    • By dpearson86 14th Nov 17, 8:18 PM
    • 53 Posts
    • 52 Thanks
    dpearson86
    • #3
    • 14th Nov 17, 8:18 PM
    • #3
    • 14th Nov 17, 8:18 PM
    I'd be making a claim under the solicitors Professional Indemnity insurance if they exchanged before you gave your go ahead.
    • G_M
    • By G_M 14th Nov 17, 9:01 PM
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    • 48,552 Thanks
    G_M
    • #4
    • 14th Nov 17, 9:01 PM
    • #4
    • 14th Nov 17, 9:01 PM
    Is the solicitor also acting for the lender or does the lender have a different solicitor?

    It sounds as is the solicitor Exchanged on your behalf without your consent.

    If also acting for the lender, he appears to have Exchanged without the lender's consent.

    Write (yes, a letter) to whoever is named at the solitor's firm as the appropriate person for their internal complaints procedure (look it up).

    Insist that in the event of the lender not releasing the full mortgage for Complettion, the solicitor's firm should make up the difference.

    But, to be absolutely clear - is it possible you authorised Exchange? Check all correspondance, emails etc carefully to see if the solicitor gave you the anticipated Exchange date and asked for your approval, and whether you responded (and how).
    • 3mph
    • By 3mph 14th Nov 17, 10:35 PM
    • 190 Posts
    • 214 Thanks
    3mph
    • #5
    • 14th Nov 17, 10:35 PM
    • #5
    • 14th Nov 17, 10:35 PM
    On the day of exchange my solicitor rang me and said "I know you really want the flat but I still have to check before exchanging" so you have to give explicit instructions.
    • SuboJvR
    • By SuboJvR 14th Nov 17, 10:43 PM
    • 445 Posts
    • 316 Thanks
    SuboJvR
    • #6
    • 14th Nov 17, 10:43 PM
    • #6
    • 14th Nov 17, 10:43 PM
    Our solicitor also called us both on day of exchange (both at work in separate places) to confirm proceeding.
    • Thrugelmir
    • By Thrugelmir 14th Nov 17, 10:43 PM
    • 55,895 Posts
    • 49,265 Thanks
    Thrugelmir
    • #7
    • 14th Nov 17, 10:43 PM
    • #7
    • 14th Nov 17, 10:43 PM
    We are buying a new house and the lenders valuation came back with some concerns and asked for a structural engineers report OR a chartered buildings surveyors report.
    We paid for a Chartered Survey report which we sent off to the solicitor on 30th October. On 6th November we were informed that we had exchanged.
    Originally posted by Lkp21
    Who asked?

    Why the time delay? Betwen the mortgage valuation and the follow up report.
    "Wide diversification is only required when investors do not understand what they are doing." - Warren Buffett
    • Lkp21
    • By Lkp21 14th Nov 17, 11:13 PM
    • 3 Posts
    • 1 Thanks
    Lkp21
    • #8
    • 14th Nov 17, 11:13 PM
    • #8
    • 14th Nov 17, 11:13 PM
    We had an email from her on the 6th November to say she was hoping to exchange contracts that day.
    Then another to say they had been exchanged.
    The report on Santander’s mortgage offer states the conveyancer must make sure all the conditions in section B are in place before they can complete the mortgage. Section B highlighted the need for a report from structural engineer or chartered building surveyor.
    This report was send to Santander after exchange.
    We assumed our solicitor had this all in place as she had the report for a week before the email to say she wanted to exchange.
    Just waiting to hear back from Santander now to see what they say.
    • cjmillsnun
    • By cjmillsnun 14th Nov 17, 11:47 PM
    • 310 Posts
    • 205 Thanks
    cjmillsnun
    • #9
    • 14th Nov 17, 11:47 PM
    • #9
    • 14th Nov 17, 11:47 PM
    If Santander says no, your solicitor is up **** creek without a paddle. They absolutely must seek confirmation from both you and the lender that they have authority to exchange contracts.

    On the day of exchange my solicitor emailed me the following

    Hi Chris

    I’ve received the ok to proceed from Halifax and I am now ready to exchange!

    Are you still wanting to complete on the 23rd August?

    I just need to get the sellers solicitors to confirm the date and take authority and I will then call if we can manage to do this today.
    (my boldface)

    Half an hour later she phoned me to take final authority from me that she could exchange. Only then were contracts exchanged.
    • G_M
    • By G_M 15th Nov 17, 12:19 AM
    • 41,950 Posts
    • 48,552 Thanks
    G_M
    Hi Chris

    I’ve received the ok to proceed from Halifax and I am now ready to exchange!

    Are you still wanting to complete on the 23rd August?

    I just need to get the sellers solicitors to confirm the date and take authority and I will then call if we can manage to do this today.
    Fixed your bold for you.

    The 'authority' comes from the client(s); the buyer (and lender if also acting for lender)
    • csgohan4
    • By csgohan4 15th Nov 17, 6:37 AM
    • 3,961 Posts
    • 2,470 Thanks
    csgohan4
    they weren't recommended by the Estate Agent were they???
    "It is prudent when shopping for something important, not to limit yourself to Pound land"
    • Lkp21
    • By Lkp21 15th Nov 17, 8:08 AM
    • 3 Posts
    • 1 Thanks
    Lkp21
    We used these Solicitors when we brought our current house and we had no issues.
    Were we wrong to assume she had sent the buildings surveyor report to the bank and they were satisfied before she exchanged?!
    Considering we are paying quite a bit of money for her services I don’t think we should have to check to make sure she’s done everything first.
    I have written a complaint to the email address issued on their website following their complaints procedure. I have been informed this is being reviewed this week and she couldn’t comment why an exchange was made under these circumstances.
    We’re supposed to complete next Friday!
    • SuboJvR
    • By SuboJvR 15th Nov 17, 8:28 AM
    • 445 Posts
    • 316 Thanks
    SuboJvR
    Just been back through my emails, in addition to the phone call I also had this from my solicitor:

    "Good news, we have received the Authority to Exchange and therefore should be ready to exchange contracts tomorrow.

    I will obtain an up to date completion build date and come back to you tomorrow for your formal authority to exchange."


    It really does sound like your solicitor has missed something important here by not asking you if you were ready to exchange and just going ahead... :S
    • saajan_12
    • By saajan_12 15th Nov 17, 8:36 AM
    • 962 Posts
    • 652 Thanks
    saajan_12
    If Santander says no, your solicitor is up **** creek without a paddle. They absolutely must seek confirmation from both you and the lender that they have authority to exchange contracts.
    Originally posted by cjmillsnun
    If also acting for the lender, he appears to have Exchanged without the lender's consent.
    Originally posted by G_M
    Not quite, exchange in between the buyer & vendor, the lender isn't usually committed to anything at this point. So the solicitor doesn't need the lender's authority to exchange.

    Ofcourse the solicitor should ensure everything is in place so the lender is satisfied and the buyer gives authority to exchange, so that the buyer isn't committed to a purchase that they can't fund because the lender refuses to lend. But that's due to the solicitor's duty to the buyer. The solicitor's duty to the lender only comes in ensuring everything is in place before completing using the lender's funds.
    • demonloop
    • By demonloop 15th Nov 17, 8:36 AM
    • 27 Posts
    • 11 Thanks
    demonloop
    The contracts that were exchanged have to be signed, if you've signed it have you not already given your consent? That's my understanding but I could be wrong.
    • hazyjo
    • By hazyjo 15th Nov 17, 9:58 AM
    • 9,801 Posts
    • 12,422 Thanks
    hazyjo
    The contracts that were exchanged have to be signed, if you've signed it have you not already given your consent? That's my understanding but I could be wrong.
    Originally posted by demonloop
    Definitely not. They're signed in advance - could be 3 weeks ahead, or 3 days. Certainly not legally binding until exchanged.
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    • G_M
    • By G_M 15th Nov 17, 12:58 PM
    • 41,950 Posts
    • 48,552 Thanks
    G_M
    The contracts that were exchanged have to be signed, if you've signed it have you not already given your consent? That's my understanding but I could be wrong.
    Originally posted by demonloop
    No.

    That's why when you sign you don't date the contract. Or insert the Completion date. The solicitor adds both these dates on your instruction at a later time (ie the day of Exchange).

    Signing in advance is purely to facilitate Exchange later - otherwise you'd have to go in to the solicitor's office to sign on the Exchange date (which won't be known in advance, and might anyway change).
    • westernpromise
    • By westernpromise 15th Nov 17, 1:02 PM
    • 3,171 Posts
    • 3,904 Thanks
    westernpromise
    We used these Solicitors when we brought our current house
    Originally posted by Lkp21
    Where did you bring your current house from? Maybe your solicitor is more used to how they do this there.
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