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Did solicitor miss this - any recourse?

driverpm
driverpm Posts: 5 Forumite
edited 9 May 2013 pm31 12:30PM in House buying, renting & selling
Hi there, first time poster, be gentle!
We bought our current house 2 years ago which had a pre-existing exterior paint finish which we were a bit concerned about. The previous owner provided our solicitor with a guarantee, which allayed our fears. I have subsequently investigated this since it needed attention, and it turns out the company went out of business long before we bought the house making the guarantee worthless.
My question is this: should our solicitor have checked/spotted this and if so do we have any recourse?
Thanks in advance for any advice

Comments

  • G_M
    G_M Posts: 51,977 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Combo Breaker
    edited 9 May 2013 pm31 12:58PM
    No.

    Your solicitor would not be expected to check that the company was still trading.

    Nor would the seller.

    Of course if the seller knew the contractor had gone out of business, and still provided the guarantee intending to deceive you into thinking there was a valid guarantee in existance, that would be fraud.

    But
    a) seller probably had no idea and
    b) .... hard to prove!
  • I think it depends on the agreement you had with your solictor.

    If you'd asked them to check that the paperwork existed, then no. If you'd asked them to check the paperwork provides a valid guarantee, then it's a different matter.

    Long shot, but you may find that the firm whilst not trading in that name has been taken over and will occasionally honour guarantees. I'd google the firm's name to see what you can find out about them.
    So many glitches, so little time...
  • phill99
    phill99 Posts: 9,093 Forumite
    Part of the Furniture 1,000 Posts
    Don't hold your breath on this.
    Eat vegetables and fear no creditors, rather than eat duck and hide.
  • dotdash79
    dotdash79 Posts: 1,069 Forumite
    the firm might have belonged to a professional body which has a scheme that might pay out or will fix the work.

    Might be worth looking into.
  • cabbage
    cabbage Posts: 1,177 Forumite
    Part of the Furniture 1,000 Posts Combo Breaker
    Some guarantees are insurance backed in case the trader goes out of business. You need to check
    The Cabbage
    Its Advice - Take it or Leave it:D
  • driverpm
    driverpm Posts: 5 Forumite
    cabbage wrote: »
    Some guarantees are insurance backed in case the trader goes out of business. You need to check
    sadly it is not insurance backed.
  • driverpm
    driverpm Posts: 5 Forumite
    I think it depends on the agreement you had with your solictor.
    thanks, I certainly don't have anything in writing requesting the solicitor to check validity of guarantee
  • driverpm
    driverpm Posts: 5 Forumite
    G_M wrote: »
    No.

    Your solicitor would not be expected to check that the company was still trading.

    Nor would the seller.

    I don't imagine for a second that the seller had any idea, but I guess I (naively) imagined that the solicitor should go so far as determine that the guarantee is genuine, not something knocked out by the seller! HoHum, this could prove very expensive to remedy. :(
  • Richard_Webster
    Richard_Webster Posts: 7,646 Forumite
    Part of the Furniture 1,000 Posts Combo Breaker
    I would tell my clients that these kinds of guarantees are rarely worth as much as people think, and that unless they ask me specifically to do so, I'm not going to check whether the guarantee is assignable (often they aren't) or that the company is still in business.

    Even if the company is still operating, unless it is large and has a substantial reputation to keep up, what happens if the company doesn't honour its guarantee? In practice, if the company still operates then coming back and doing work can be positive for their advertising/PR - "They came back and put it all right and didn't charge a thing..." However if the company is going down the pan it simply can't manage to do this and doesn't care. No point suing them because by then the company won't have any assets so a court judgement will be a waste of money and time.

    If I had been involved and knew that OP considered this to be a very important factor in deciding to buy the house I would try to explain the realities set out above so that they could make a decision. We could check if the company is still going but will it be in 5 years time?
    RICHARD WEBSTER

    As a retired conveyancing solicitor I believe the information given in the post to be useful assuming any properties concerned are in England/Wales but I accept no liability for it.
  • driverpm
    driverpm Posts: 5 Forumite
    If I had been involved and knew that OP considered this to be a very important factor in deciding to buy the house I would try to explain the realities set out above so that they could make a decision. We could check if the company is still going but will it be in 5 years time?
    thanks for this, your approach would have been helpful a few years ago; naivety lost!
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