Can we sue Solicitor?

GDB2222

They are in possession of the house, but I don't see how their claim to ownership can possibly have precedence over the mortgages already registered against it. So, of course, the last thing they want to do is pay for the house unless all the existing mortgage holders will agree to discharge their mortgages. It would make good sense for them to do this, if they think the house has been sold for a fair value. It saves them the cost of possession proceedings and marketing the house themselves. They will take some convincing, but with a bit of luck this could all get sorted out quite quickly.

sonastin

AMILLIONDOLLARS wrote: »

I'd be more concerned about keeping hold of the house then suing at this point!

AMD

what if suing is the most effective means of keeping hold of the house?

nomoneytoday

Depending on the balance open, the solicitor may pay the difference out of their own pocket, as an insurance claim and excess may be very high ..

AMILLIONDOLLARS

nomoneytoday wrote: »

Depending on the balance open, the solicitor may pay the difference out of their own pocket, as an insurance claim and excess may be very high ..

Quoted from Ricools : I asked if there was any way that the vendors creditors would accept a lower settlement figure from him and she said no because there are 3 different creditors after the cash and what is left over from the would be sale doesn't even cover 50%.

That's an awful lot of money the Solicitors have to find/ claim for!!

AMD

googler

AMILLIONDOLLARS wrote: »

That's an awful lot of money the Solicitors have to find/ claim for!!

They wouldn't have to find it if they'd done their job properly in the first place (or so it appears) .....

Can I refer back to #70 - solicitors are there to ensure all the Is are dotted and the Ts are crossed in a house sale/purchase. They're meant to ensure that due process is followed, and that their clients don't find themselves in this sort of mess. That's what they study for and that's what they're paid for.

GDB2222

googler wrote: »

They wouldn't have to find it if they'd done their job properly in the first place (or so it appears) .....

Can I refer back to #70 - solicitors are there to ensure all the Is are dotted and the Ts are crossed in a house sale/purchase. They're meant to ensure that due process is followed, and that their clients don't find themselves in this sort of mess. That's what they study for and that's what they're paid for.

We really are going round in circles. The I's were dotted, etc. When it came to completion, the solicitor checked the amount of the charges against the sale price, there wasn't enough, and completion did not take place. You seem to be saying that this calculation should have been done sooner. But, you haven't backed that up at all.

googler

GDB2222 wrote: »

We really are going round in circles. The I's were dotted, etc. When it came to completion, the solicitor checked the amount of the charges against the sale price, there wasn't enough, and completion did not take place. You seem to be saying that this calculation should have been done sooner. But, you haven't backed that up at all.

They allowed the mess to occur by handing over the keys without ensuring that all funds were correctly accounted for to allow the sale to be finalised. They didn't follow what I would, in my non-legal way, call 'due process' (they may have another term for it). Sorry, but the Is and Ts were not fully dotted and crossed.

I'm almost tempted to say it stands to reason that the solicitor working toward settling a house sale should know how much money they'll need long before the date of entry. They shouldn't suddenly realise on the day that they haven't. Should I need to 'back this up' ?

RabbitMad

In England and Wales the buyers solicitor usually puts a notice on the property preventing any further charges being registered just before exchange up until completion. The vendors solicitor usually checks the purchase price is sufficient to discharge all liabilities prior to exhange.

Translate this from E&W to Scotland and it is reasonable for the OP to have expected the solicitor to do these things. That they didn't is negligence (imho) and it seems that the OP's new solicitor agrees.

The original solicitor now want to extract themselves from this mess as cheaply as possible

billybraggtastic

Inhibitions are quite different from a Charge on Property.

I can offer this from my own personal experience rather than from a Legal prespective.

I had 2 Inhibitions against me. They are not registered against the property but the individual, and prevent the individual from selling any property - see extract below:

"inhibit you from selling, disposiing of, burdening or otherwise affecting all land and othe heritable property in which you have an interest to the prejudice of A Creditor. See notes 2 to 4 for how you are affected by this Schedule"

"Note 3: if you are in the course of or are contemplating a transaction which affects any land or building in Scotland in which you have an interest you should tell your solicitor immediately about this document."

When I was in the process of selling my home I made my solicitor aware of this in plenty time. Nothing came up on the search on the Title but the Inhibitions were registered against my Personal Search.

In this scenario the vendor has been at the very least vague with his solicitor and the solicitor has been lax in carrying out the appropriate searches.

Ultimately, the information was in the Public Domain and the Solicitor has dropped an almighty clanger completing the contract without having all the necessary checks in place.

GDB2222

googler wrote: »

They allowed the mess to occur by handing over the keys without ensuring that all funds were correctly accounted for to allow the sale to be finalised. They didn't follow what I would, in my non-legal way, call 'due process' (they may have another term for it). Sorry, but the Is and Ts were not fully dotted and crossed.

I'm almost tempted to say it stands to reason that the solicitor working toward settling a house sale should know how much money they'll need long before the date of entry. They shouldn't suddenly realise on the day that they haven't. Should I need to 'back this up' ?

The normal requirement is that prior to exchange the vendor confirms that any charges will be discharged on completion. Maybe the vendor told his solicitor that he was selling shares/ had a chunk of money coming off deposit/being given by his grandad, enough to make up the shortfall. Who knows? I very much doubt that there's any obligation on either solicitor to verify this money is actually available. (Yes, I know that the same firm acted for both buyer and seller.) In any case, things can change between exchange and completion - grandad might change his mind for example.

Then, at completion, the vendor did not come up with the extra money, the solicitor added up all the available funds, and it wasn't enough to enable completion to take place. At that point, the solicitor probably said "can't complete, the deal is on hold until vendor comes up with the rest of the funds". If the solicitor had stuck with that approach, he'd probably be entirely bulletproof and in the clear.

However, my impression is that the would-be vendor had moved out and the would-be purchasers had nowhere to live. So, the vendor out of kindness instructed his solicitor to let the buyers have the keys, despite it not being possible to complete. Maybe the solicitor should have made it clearer what was happening. Maybe the solicitor did make it clear, but the buyer does not recall it all. Anyway, that's the bit which muddies the waters.

This is mostly my reconstruction of what I think probably happened. If I am right, the solicitor is probably in the clear. There's a naive idea on this forum that solicitors are like fairy godmothers who make everything all right, but they can only follow procedures and take instructions.

Ricools' new solicitor seems to agree with me, as Ricools said: "It is also normal for the solicitor to carry out checks after the missives have been concluded but what seems to bes our saving grace is the fact that she handed over the keys to us."

So, Ricools's solicitor agrees that there's no obligation to check on the funds until completion. The only real issue is the terms on which the keys were handed over to Ricools, and you can be sure that there will be more than one version of that story.

Like I said, we are going round in circles. Please pay attention at the back of the class.