How should we deal with the errors in the Engrossment Lease when buying a flat?

helger

We are buying a leasehold flat. Just received the Engrossment Lease. However, there are still problems listed below:

(1) There is a word “Draft” at the upper-right corner of every page in the Engrossment Lease, including the Execution Page. :eek:

(2) One clause of the Engrossment Lease states “For the purposes of any disposal permitted under Clause A or under clause B ……”. However, clause B does not exist at all.:eek:


Actually, I have identified these problems on the Draft Lease and told my solicitor. My solicitor then notified the vendor solicitor. It is very surprised to find out the same problems on the Engrossment Lease when we received it.

I called my solicitor again regarding this issue after receiving this Engrossment Lease. He simply said “no implications”, and asked us to sign it with a witness and that’s it.

Also, the completion date is very soon. It seems there is no enough time to let the vendor solicitor to replace the Engrossment Lease thanks to the delay in postings like always. So a question is that must my solicitor receive the signed lease before the completion date?

I am really worried about this. Do you think this is acceptable? Does it affect us in any way from the legal perspective? Many thanks!

helger

Any comments are highly appreciated

G_M

I assume you are (will be) the original leaseholder? This is not an existing lease that you are buying from a current leaseholder?

You have employed a solicitor to advise you. Follow his advice. I imagine that provided the document is suitably signed dated witnessed, it will be valid whether it says draft or not. It if in doubt, ask him/her.

If clause B does not exist, then any reference to it is redundant and can be ignored. Again, though, if in doubt, ask him/her.

Having said that, I too would want the lease corrected - it is a document that is going to last for, what? 99 years?

Has Exchange taken place? Surly engrossment should take place at/before that point? In which case Compltion date is not yet fixed.

If Exchange HAS taken place, how soon is Completion?

helger

Many thanks G_M for your very useful comments.

We are buying a new built, so will be the original leaseholder. We have already exchanged. Only after the exchange, the vendor solicitor sent the Engrossment Lease to our solicitor, who then forwarded it to us by posting. The completion date will be Thursday 15 March (we must catch up the deadline of the stamp duty holiday). I do not think there is enough time to finish the whole correction process before the completion date. It takes time for the vendor solicitor to send a new correct Lease to our solicitor. Our solicitor then sends it to us. We should then sign it, and send back to our solicitor. My question is that must my solicitor receive the signed lease before the completion date (i.e. must the correction process be completed before the completion date)? Should I insist on correcting these errors?

I understand that we should speak to our solicitor, because we have employed him to advise us. However, all he said re this issue is “no implications”, and he has no interest at all in contacting the vendor solicitor to correct these errors. Can we force him to do so?

In fact, there is no guarantee that our solicitor’s advice is always right. As a human, everyone can be wrong sometimes. Moreover, the solicitor company may also go burst in the future. It will then be only us who will afford the adverse effects of the errors, if there is any.

Specifically, I am worried about any possible adverse effect if we want to sell the property in the future. There may be additional legal work required in order to correct these errors when we want to sell the property. If this is the case, it is definitely better to correct them now, and not leave the problems to the future.

Any more comments are appreciated.

G_M

Where is your solicitor (in relation to you)?
Where is the seller's solicitor.

If (reasonably) local, you can always collect the document yourself rather than using the post (one of the key benefits of local solicitor rather than 'internet'!). A day spent driving around and it could all be done.

An alternative is to pay a courier for same day delivery. Money buys almost anything!

Your solicitor (IS it a solicitor? Or an internet conveyancing call centre with one solicitor overseeing 50 admin assistants...... and with little time/inclination to deal with queries...) OK your 'solicitor' works for YOU. If you give him an instruction, he has to carry it out.

Send or hand deliver a letter (if post, also send an email making clear it is a copy of the written instruction in the post) INSTRUCTING him not to Complete until he has obtained an amended lease from the seller. That should get his attention. Oh - send a fax too.

And/or phone, making clear the same instruction and telling him to :

a) note the time/date of the phone call and name of participants in your file
b) make a note in your file of the instruction (make him read it back to you)
c) make clear you are making the same notes in YOUR file, with HIS name

He CANNOT then Complete without your instruction.

He may, of course, then take the time to explain why this is not an issue and that you should Complete, and you may be satisfied - in which case you can change your instruction.

He may also warn you of the consequences to you of refusing to Complete (penalties etc). You will then say "but it is the seller who has failed to Complete by not providing an acceptable engrossed lease", so the penalties are on the seller. As my solicitor I expect you to fight my battle on this."

I must warn you I am not a solicitor. Nor do I know much about creating new leases (I've never done it).

So it may be you (and I) are worrying about nothing. But at the least your solicitor should be clearly explaining why this is so, and you are within your rights to expect such an explanation. After all, you are paying him.

helger

I am in London, my solicitor (selected by the lender from its list) is in the north of England, and the vendor solicitor is in the south west of England. Though both solicitors are not internet conveyancing call centre, they are both not so responsive. Past experience showed that even a small enquiry may take up a couple of weeks to get back the reply with several chase up. The conveyancing work has actually taken for about 4 months…

We do not really want to delay the completion, because we need to catch up the deadline of the stamp duty holiday. Missing the deadline means paying another amount of unexpected money.

We do not want to have the Engrossment Lease with potential problems for the future either.

It is really hard for us to decide how to proceed.

G_M

Get prices and arrange couriers.

Instruct your solicitor on Monday at 9.00 to immediately contact the other solicitors and require them to amend the document and courier the document to him by 3.00 PM Monday. Instruct him to call you back as soon as he's spoken to them to confirm.

Instruct your solicitor to call you at 3.00 to confirm receipt, and to review the document before couriering it to you same day.

Tuesday - you sign and courier back (direct to vendor's solicitor? - discuss with your solicitor)

OK - this is all optimistic, but if you are insistant, willing to pay couriers, willing to sit on the phone all day, ring constantly for confimation of progress/updates, you can still achieve Thursday.

Also try talking to the vendors, pointing out their soliciors are risking default on Completion by not providing documents. Or the agents if any were involved.

helger

Many thanks again G_M.

Fully understand your idea of courier. In the optimistic view, it is achievable. Still not quite sure if my solicitor can force the vender solicitor to use the courier service. They may simply refuse but use the normal post

In addition, do you mean that my solicitor must receive the singed lease with witness before the completion? Just wonder if it is possible for completion without delay, but correct the lease a little later after completion?

G_M

Once Completion has taken place, logic dictates that neither the vendors, nor their solicitors, will have much interest/incentive to correct the lease.

No, you cannot force the vendors solicitors to use a courier, you can only
a) make it easy by arranging collection yourself form them (and obviously telling them the collection time!)
b) paying for it yourself
c) re-emphise that their failure to correct, jeopordises Completion which will cost their clients

Where the signed lease needs to end up I'm not sure. From your point of view, I suppose what you need is a corrected version with their signature. That gives you piece of mind. You can then sign at your leisure.

helger

G_M wrote: »

I suppose what you need is a corrected version with their signature. That gives you piece of mind. You can then sign at your leisure.

Re the above, For the Engrossment Lease with errors, the vendor has not signed at all. The execution page is empty. My solicitor just required me to sign and witness the signature, and send it back to him. So it is very unlikely for both parties to sign the lease before completion, even using the version with errors.

G_M

Look - try a bit of logic. Given what you say the logical thing to do is get the V's solicitor to redraft, courier to his client for signature, then courier to your solicitor.

Then you've accomplished what you need for your protection.

Now I don't know how much of this is a) necessary or b) achievable, but i's the best you can strive for.

Your solicitor may tell you on Monday to 'chill out'and explain why.

You may be faced with the choice of delaying Completion (which you don't want to do) ir accepting the risk of the lease as is (though it seems the vendor has not even signed it themselves - and you are reluctant to do this too.)

I'm just suggesting rather obvious ways for you to speed things up!