Should our solicitor have done this?

fannyanna

I’m trying to avoid boring you all with the background so here’s some key facts:

• We are selling a leasehold flat.
• The previous owner bought the property from the Council under the Right to Buy Scheme.
• The lease strictly prohibits the property from being let although the freeholders were flexible on this and said they would issue consent.
• We had investor buyers who pulled out because they didn’t want a restriction on letting or the need to obtain consent.
• We got the buyers back on track by agreeing to enter into a Deed of Variation with the freeholder to remove the restriction/consent requirement. This was solely on the advice of our solicitor.
• The freeholder didn’t want to remove the consent requirement until our solicitor did some research and highlighted that it was unlawful to have any restrictions in place (including the requirement to obtain consent). On this basis the freeholders agreed to the Deed of Variation.

It has just occurred to me (and I really wish I’d realised this before) that it would appear that we don’t need a Deed of Variation. Our solicitor has said that the restriction was unlawful and the freeholders (and their solicitors) have agreed. I actually have a letter from the freeholders saying they had not realised this and that now they are aware of this they will be making sure that their practices are updated.

The question I’m now asking myself is why our solicitor advised us to get a Deed of Variation in the first place. And why, she carried on putting the Deed of Variation in place despite knowing that the restriction is unlawful. It seems to me that we have gone to all this time, effort and cost to simply put in place an agreement which clarifies the legal position.

Am I going banana’s or does it seem that our solicitor has had us running round the houses for no reason?

EDIT: Apparently it's something under the Housing Act 1985 which gives tenants the right to buy their council properties (right to buy) and then a provision in the Act which says any restriction in a right to buy lease which prevents assignment or subletting is void.

princeofpounds

Am I going banana’s or does it seem that our solicitor has had us running round the houses for no reason?

I can think of three reasons for this:

1) The solicitor is trying to con you for extra work

2) The solicitor was not fully up to speed on a relatively obscure part of the law and made a mistake as a result

3) The solicitor took the view that you were doing this to appease buyers who would know nothing except what they read in the lease, rather than actually seeking to protect yourselves legally, and so carried on.

I think 2 or 3 are much more likely that 1, but of course the prospect of more work and fees would probably make someone less likely to stop and think critically about their assumptions in continuing a course of action.

I don't know how it works, but if this were me I wouldn't be flying off the handle and dumping the solicitor, but I would be asking the solicitor to lower or remove some of their charges to show goodwill.

DVardysShadow

fannyanna wrote: »

... The question I’m now asking myself is why our solicitor advised us to get a Deed of Variation in the first place. And why, she carried on putting the Deed of Variation in place despite knowing that the restriction is unlawful. It seems to me that we have gone to all this time, effort and cost to simply put in place an agreement which clarifies the legal position.

Without the DoV, you might have a job convincing buyers that the restrictions had no effect. As I see it, you are entitled to a DoV from the Freeholders, free of charges from them. I don't know whether that would soften the blow?

Thrugelmir

fannyanna wrote: »

[*]The freeholder didn’t want to remove the consent requirement until our solicitor did some research and highlighted that it was unlawful to have any restrictions in place (including the requirement to obtain consent).

Not unlawful to have a clause. The landlord however cannot withhold permission without reasonable grounds and has to respond to a written request.

As the property was bought as an investment at least the uncertainty was removed. Otherwise buyer may have moved on.