How reliable is a properly drafted Deed of Variation?

BitterAndTwisted

Please, PLEASE pay attention to your solicitor's advice! Why do you think they intend to wash their hands of any responsibility if you decide to go ahead? Because it's risky and the outcome is in doubt. If the defects in the lease could be adequately corrected in a Deed of Variation they would be happy to act for you if you choose to proceed.

kmmr

Keflon wrote: »

So to get back to the original question ... if I have a defective lease and the defects are adequately corrected in a Deed of Variation, is the resulting document as good as having a proper lease to start with?

Thanks again

We can't answer this as we don't have enough information. However, your solicitor does, and s/he has clearly answered NO.

So I would suggest the answer is 'no'!

Keflon

kmmr wrote: »

We can't answer this as we don't have enough information. However, your solicitor does, and s/he has clearly answered NO.

So I would suggest the answer is 'no'!

I'm not sure what other information you might need?

Obviously my solicitor has grave concerns but this is separate to the question asking whether a corrected lease is as good as a correct lease.

If a corrected lease is viable then the next question is whether or not the lease in question can actually be adequately corrected and I think some people may be confusing the two.

I have today spoken to two other solicitors - one didn't really engage and recommended I take the advice given and back away; the other explained to me in some detail that a DOV amends the lease it is applied to and has the same validity in law as if the amendments were part of the original lease.
She went on to explain that of course this amended lease may still be inadequate, just as any lease on any property may be so.

I consider the question answered and I have now asked my current solicitor if he can draw up a list of amendments that if added to the lease would satisfy them enough to not require I sign a waiver.

I realise that it may be impossible to fix the existing lease to a high enough standard for whatever reason and if that is the case I will move on. I will not purchase a property against the advice of my solicitor however if the lease can be amended to the satisfaction of both myself and my solicitor I will continue with the purchase.

In summary: Given a lease with a deed of variance, the DOV overrides the lease and is legally sound.

kmmr

Ok - I suppose techincally any legal document can be amended and this is 'legal'. In this case it depends what is wrong with the title, and what can be done to fix it.

If there are major problems (say.. wrong area, wrong address, easements, rights of way, non ownership of driveway etc, I don't know what else) and your solicitor is saying it is too much to fix, or perhaps the other side are indicating they won't agree to the changes, then the 'fix' may not be possible.

Or - perhaps he is advising that while it can be fixed, mortgage companies etc just don't like anything non-standard, and you will run into problems in the futue so s/he wouldn't advise it. It feels to me you have decided you want to go ahead with this, and are fishing for opinions to make it happen. In which case, good luck. It can work, but you asked for some advice here, and I think the general advice is be careful, and don't make a rash decision to get around a short term problem.

If there is a lot to change, could you not just get the lease re-drafted as a new lease?

kmmr

The US Bill of rights is an amendment to the consitution, so any amendment is possible and legal, just in this case it may not be advisable. As you advisor has told you.

GDB2222

Keflon wrote: »

Hello and thanks for the interest.
I feel that my solicitor has wasted my time because I acted on their specific advice and then three weeks later they changed that advice, rendering my activities of the preceding three weeks useless. - edit: This is irrelevant to my question.

I suspect that what's happened is that he has had a natter with the vendor's solicitor, and that has raised even more concerns in his mind. Effectively, this flat is only saleable to cash buyers without a mortgage, so the market is very restricted, and the value is probably 20% lower than normal. Either negotiate a really substantial price reduction or you should definitely walk away.

chappers

Please listen to your solicitor, since speaking to you about repairs he has looked into the lease and found that to be faulty and is now advising you that the proposed deed of variation is not sufficient to protect you and that without a costly rewrite, the property would be un-mortgagable.
He is trying to prevent you from making a potentialy costly mistake, he understands leases and how they can be repaired and obviously considers this one to be beyond repair.
Be thankful you have such a diligent solicitor and move on from this property.
Nobody on here can comment without seeing the lease.
If you think you re being wrongly advised by your solicitor then go find another one, who will tell you what you want to hear.

However to answer your question, a properly drafted deed of variation is legally watertight, whether the LL would agree to such a deed is another matter altogether.

Keflon

> It feels to me you have decided you want to go ahead with this, ...

Yes!

> ... and are fishing for opinions to make it happen.

No!

It's a lovely flat and would suit me very well, irrespective of any immediate and pressing need for somewhere to live.

I want to understand why the answer is 'No' so I can see if those reasons can be mitigated. In short in this case the deed is so wonky that it would have to be replaced for my solicitor to have confidence in it.

So, having done my research, Instead of saying to the seller 'Sorry but no' I have said 'Sorry but I have to withdraw unless you replace the lease and here is why ...'.

Actually in this case I've asked him to agree to replace the lease to the satisfaction of my solicitor and let me live there for a nominal rent while the paperwork is done.

I will not buy a flat against the advice of my solicitor. I will ask what can be done in order to satisfy my solicitor that the purchase is safe.

The actual contents of the lease are irrelevant to this discussion. What is relevant is the fact that the lease is unsuitable and cannot satisfactorily be repaired.

Thanks all.

chappers

Following your above post then if you can get the vendor/LL to re-write the lease to your solicitors satisfaction then there shouldn't be any problem. But as I said above , whether he is happy to do that is another matter entirely.
By the sounds of it , it may be in his interest to sort the lease as at present it seems he may have an un-saleable property.
Let us know how it all goes.

hazyjo

Even if you did get the lease sorted to your solicitor's satisfaction, as mentioned above - you would (in this market) probably only be able to sell to a cash buyer as it's over a shop. Who knows what the market will be doing when you do come to sell.

Flats over shops are generally harder to sell, even in a good market. Have you seen how hard it is for some people to sell their homes, let alone trying to sell something that alienates the vast majority of buyers.

Jx