Can we sue Solicitor?

googler

GDB2222 wrote: »

It's good for the OP that he/she has got the keys BTW. Maybe someone released them without checking with the solicitor? Who knows?

The 'someone' releasing the keys is usually the selling agent or solicitor in Scotland. A selling EA, independent of the solicitor, wouldn't normally release them without the say-so from the solicitor confirming funds have changed hands, i.e. sale is completed.

The solicitor, if also acting as selling agent, wouldn't normally release them without knowing themselves the sale was completed.

The seller/owner may have released them to the OP, but again, I would expect the selling agent or solicitor to control the process, and ensure that the seller didn't act out of turn.

Sometimes the selling solicitor will release keys to a more-local buying solicitor if convenient, and the buying solicitor will release them to their own client - but in this case, the buying solicitor is also expected not to release them until the proper time.

FireWyrm

googler wrote: »

The purchasing solicitor is required to ensure that the seller has proper title to the property, and is expected to carry out searches to detect any second charges against the property.

OK, I had the same thing. That search would presumably have shown the charge against the house...so how the f***k did she NOT see it?

googler wrote: »

The selling solicitor also should be ensuring that the seller is able to sell, by covering all finance secured against the property.

And again. I can understand one solicitor dropping the ball, but two? At the same time? One solicitor could not have been working for both the buyer and seller at the same time, so it must have been someone else in the same office - how did two distinct people not see charges? Also, how much are we talking about here? I can understand not seeing £5, but £5000?

googler wrote: »

Since the same solicitor seems to have been covering both of the above ......

Isnt that illegal? When I tried to use the same solicitor firm as my buyer (on another house sale) thinking it would speed things up, I was told in no uncertain terms to get my own solicitor and that it couldnt even be the same firm let alone the same solicitor....

GDB2222

googler wrote: »

My non-legal view is that it's a requirement that this be done prior to concluding missives. Otherwise the solicitor leaves their client vulnerable to situations such as this, and the solicitor fails in their duty.

Whether it's a requirement set out in statute or legislation, I know not.

Well, everyone here is stating that this solicitor is negligent, based on the assumption that that is a requirement. So, it's absolutely crucial to know whether it is something that an ordinary, competent solicitor would always do prior to concluding missives.

BTW does concluding missives = exchanging contracts down here?

Thrugelmir

GDB2222 wrote: »

Well, everyone here is stating that this solicitor is negligent, based on the assumption that that is a requirement. So, it's absolutely crucial to know whether it is something that an ordinary, competent solicitor would always do prior to concluding missives.

The solicitor is also representing the lender. So has a duty of professional care throughout the process.

AMILLIONDOLLARS

Correct me if I am worry people...

I take it that contracts have been exchanged, full stop, so in Scottish Law the deal is binding. The funds were sent to the solicitor to complete the deal, but she found that she did not have enough money to pay her other clients bills. She now wants to cancel the whole transaction.

I would have thought the deal was binding, regardless of whether her clients have enough money to pay off the remainder of their debts. She should try and negotiate with her client's lenders on how the shortfall will be paid, looks like they will default on their mortgage anyway.

AMD

Just found this:
[FONT=Arial, Helvetica, sans-serif]in Scotland the contract takes the form of a series of letters known as "missives". There is nothing for the purchaser to sign to commit to the contract as the "missives" are generally signed by the parties' solicitors. Once the offer has been accepted on all points, you have entered into a legally binding arrangement and neither party can withdraw without potentially being held liable for the consequent losses of the other party. Accordingly, you should be careful and only submit a written offer through a Scottish solicitor and make sure your solicitor is aware of your situation. If you offer in writing yourself and this is accepted, you could end up being committed to buy a 'pig in a poke' - a well known Scots non-legal term! Once committed, if you want to get out of the deal, you might be liable for any loss on resale and other costs.[/FONT]

wastedtalent

AMILLIONDOLLARS wrote: »

Correct me if I am worry people...

I take it that contracts have been exchanged, full stop, so in Scottish Law the deal is binding. The funds were sent to the solicitor to complete the deal, but she found that she did not have enough money to pay her other clients bills. She now wants to cancel the whole transaction.

I would have thought the deal was binding, regardless of whether her clients have enough money to pay off the remainder of their debts. She should try and negotiate with her client's lenders on how the shortfall will be paid, looks like they will default on their mortgage anyway.

AMD

Just found this:
[FONT=Arial, Helvetica, sans-serif]in Scotland the contract takes the form of a series of letters known as "missives". There is nothing for the purchaser to sign to commit to the contract as the "missives" are generally signed by the parties' solicitors. Once the offer has been accepted on all points, you have entered into a legally binding arrangement and neither party can withdraw without potentially being held liable for the consequent losses of the other party. Accordingly, you should be careful and only submit a written offer through a Scottish solicitor and make sure your solicitor is aware of your situation. If you offer in writing yourself and this is accepted, you could end up being committed to buy a 'pig in a poke' - a well known Scots non-legal term! Once committed, if you want to get out of the deal, you might be liable for any loss on resale and other costs.[/FONT]

I guess, as posted previously, the question is about what losses have been incurred by the OP.

GDB2222

AMILLIONDOLLARS wrote: »

Correct me if I am worry people...

I take it that contracts have been exchanged, full stop, so in Scottish Law the deal is binding. The funds were sent to the solicitor to complete the deal, but she found that she did not have enough money to pay her other clients bills. She now wants to cancel the whole transaction.

I would have thought the deal was binding, regardless of whether her clients have enough money to pay off the remainder of their debts. She should try and negotiate with her client's lenders on how the shortfall will be paid, looks like they will default on their mortgage anyway.

AMD

Just found this:
[FONT=Arial, Helvetica, sans-serif]in Scotland the contract takes the form of a series of letters known as "missives". There is nothing for the purchaser to sign to commit to the contract as the "missives" are generally signed by the parties' solicitors. Once the offer has been accepted on all points, you have entered into a legally binding arrangement and neither party can withdraw without potentially being held liable for the consequent losses of the other party. Accordingly, you should be careful and only submit a written offer through a Scottish solicitor and make sure your solicitor is aware of your situation. If you offer in writing yourself and this is accepted, you could end up being committed to buy a 'pig in a poke' - a well known Scots non-legal term! Once committed, if you want to get out of the deal, you might be liable for any loss on resale and other costs.[/FONT]

There's no argument that the vendor is in breach of contract, but also that the vendor does not have any money so is not worth suing. The buyer contracted to buy a house without any debts charged against it. The vendor cannot provide that because the sale proceeds are less than the debts. It's not up to the solicitor to somehow make that right.

The only useful question is whether the solicitor was negligent for not knowing about this earlier? Nobody here seems to know the answer to that, but loads of people assumed that the solicitor was negligent.

Apart from that, if Ricools gets his/her money back, his/her loss may not be that large.

wastedtalent

I'm getting the impression, the solicitor may have not done their job very well, but the only person liable for any costs would the the selling party, who unfortunately seems to be already struggling. It seems like their debts will be the reason the sale fell through, and it'll just go down as vendor withdrew from the deal.

googler

GDB2222 wrote: »

The buyer contracted to buy a house without any debts charged against it. The vendor cannot provide that because the sale proceeds are less than the debts. It's not up to the solicitor to somehow make that right.

The only useful question is whether the solicitor was negligent for not knowing about this earlier?

The solicitor(s) concluded the missives, and did so on behalf of their respective clients (although there's some doubt how independent they were of each other, apparently being either two sols in the same firm, or one and the same sol)

I don't know what is precisely set out in law about the respective sol's obligations (as opposed to guidelines presented on the Scottish Law Society web pages and booklets), but my non-legal view is that homeowners and homebuyers hire solicitors in Scotland to ensure that all aspects of their sale and purchase are carried out correctly, and so that they don't find themselves in the mess that the OP is in.

Again, my non-legal view is that the solicitor has failed the OP in this duty (as far as I can see from the facts presented here), and, in my view, one solution would be for the solicitors concerned to make up the shortfall of funds from their own resources. Unlikely, but it seems to me the most decent thing for them to do.

Again, in my non-legal view, if the purchasing solicitor hasn't adequately checked the seller's ability to sell, they have been negligent in their duty to the OP.

If the selling solicitor hasn't adequately checked the charges against the property will be covered, they've been negligent in their duty to the seller, and possibly have misled the purchasing solicitor (but again, see the point about sols within same firm, and possibly same sol acting with conflict of interest)

Here's a plain-english version by a respected source

sonastin

In my opinion:
1) the sol is negligent by acting for both parties without making that known before starting the process. Whether 2 individuals operating a chinese wall or 1 person, the OP was entitled to know about the potential conflict of interests before agreeing to them acting. That is just a general principle of legal practice and I'm pretty sure it operates both north and south of the border. On this point of negligence, the OP may not have suffered any loss if the transaction went ahead smoothly so not necessarily the most heinous act of negligence.
2) If the solicitor does not owe a duty of care to establish that the property being purchased is available for sale at the purchase price before binding the purchaser to the contract, what is the point of having a solicitor acting for you? Negligence isn't set out in statute; it is defined by whether the ordinary person would be expected to act in the same manner in the same circumstances, or in the case of professionals, whether anothe professional of the same skill and experience would do the same thing. I sincerely doubt that other solicitors would conclude missives without checking that the sale monies would pay off any charges against the property so I am confident that if the OP has represented the situation accurately, then the solicitor has been negligent in concluding missives in this case too.