Please help - maisonette with defective lease?

Babooshki

Hi, we are currently in the process of selling our self-contained top-floor flat in a two-storey property. It has it's own front door with a narrow ground-floor corridor and carpeted stairs leading up to the main part of the flat as well as a wooden staircase at the rear leading down to our section of [shared] garden.

Our buyer's solicitor has a major issue with the fact that the original lease only mentions 'the upper part' of the property and does not mention the ground-floor corridor nor the back staircase. She is claiming we need to obtain a deed of variation in order for the sale to go through.:(

I would like to find out if it usual for such maisonette leases to specify the downstairs?? Also, the original wording of the lease does state the following (relevant bits): 'THE LESSEE HEREBY COVENANTS with the Lessor as follows:...it is hereby declared and agreed...that there is included in this covenant:
b) the walls wholly within the demised premises..and one half part in width of all walls separating the demised premises from the adjoining maisonette...
d) the front and back doors of the demised premsies'

In my view, the wall mentioned in b) refers to the party wall separating the ground-floor corridor from our neighbour's corridor and d) referrs to our front door which logically is on the ground floor (the lease also grants us right of way to the front garden and porch where our front door is located). Hence, is the buyer's solicitor correct that the elase is defective even thought the above wording is included? If it is, would not an idemnity policy cover the deficiencies?

Any thoughts and advice on the above very welcome. Many thanks for reading.

Babooshki

Anyone??

Am now desperate for some advice please as the buyer's solicitors has just sent an email with numerous exclamations saying she is not prepared to recommend our current lease and we need to have a variation of contract which we ened to pay for. They are not prepared to accept indemnity insurance

Unfortuantely, having already gone through a very prolongued and expensive process of extending the lease on the flat, we really want to avoid the above at all possible costs.

Richard_Webster

The lease must either specifically include the areas in question in the definition of what is included in the lease or must give a right to use the stairs etc.

Clauses cited not clear enough for a buyer's solicitor to be happy.

AlexMac

The problem is now that even if the buyer's solicitor is being over-cautious, having given their client the advice that a deed of variation is required to safeguard them in any future sale, they will probably hold to that advice, even if your solicitor offers a contrary view.

In other words, the buyer will probably feel bound by the advice of the solicitor who they are paying to safeguard their interest. Or put another way, they've got you over a barrel, and you may have to just swallow the cost and the delay (although it takes very little time, it probably will cost a few hundred quid in our experience of a deed)

I'm no expert, and the lack of responses probably means a reluctance to offer legal opinion on the deatil, but in out last two sales of leasehold flats, we noticed that the buyers' solicitors were much more picky and risk averse than when we bought.

And when we bought one of them, 12 years ago, our solicitor was insistent that the vendor pay for a deed of variation to correct a minor discrepancy about definitions of shared or dedicated space in a couple of square metres of patio next to our entrance- so I guess I appreciate where they're coming from. The error had been unnoticed by previous buyers and sellers for over 20 years and we didn't care if it was ours or communal, but the point our solicitor made was that if she noticed it, a future buyer's solicitor might. So back to being 'over a barrel'

What does your solicitor say?

Babooshki

Hi, thank you so much for your responses. I realised it must be a very grey area due to lack of any previous responses/advice.

AlexMac - yes, its a similar situation to what you described, we know that the flat has sold a number of times in the last 30 years and obviously these transactions have been successful and mortgage lenders have not had an issue with lending on the property. Its extremely unfortunate that its come to our turn to sell and the buyer's solicitor is nit-picking/being thorough however you wish to look at it!

Our solicitor I'm afraid seems really in over his head over this. In fact, it's been myself and my husband who have done all the research, i.e. gone through the lease wording, contacted the LEASE advisory service etc. I don't think he knows enough to fight our corner.

Could you advise a bit more about the deed of variation? You mention its quick etc. but according to lease-advisory you have to serve notices on the freeholder/downstairs flat and possibly pay them compensation? On the forms it says it could take up to 10 weeks for the decision to be granted?? So even if our buyer is willing to accept the timr-frame involved, I'm not sure if the venbdors of the house w're buying will. Many thanks for reading & any guidance you could give.

Babooshki

Sorry, just giving a bump to my post as I'm really keen to get some advice re my previous questions...

AlexMac - we have heard from our solicitor this week that best case scenario for a deed of variation would be 2-week turnaround and worst case could take up to 4 weeks - is this the case in your experience too? We're worried as our freeholder and his solicitors are notoriously tardy hence it took us almost 2 years to have a successful lease extension!

We still need some advice re costs though. What is reasonable for this kind of process? Can the freeholder pick a figure as he wishes (this is again what he tried to do with he lease extesion & why we had to go to LVT to resolve it).

Thanks.

harrys_dad

Why are you paying good money to a solicitor who is "in over his head"????

Babooshki

Fair question. Well...we were going to go with a very reputable local solicitor, unfortunately they are already representing the vendors of the hosue we are buying who so there was a conflict of interest. Our current solicitor is also local & was recomemended by the EA; since we wanted to get the process started speedily we just went with them.

We sort of regret not continuing with the solicitor who was responsible for our lease extension but when we approached them for conveyancing quotes etc..they were very slow in replying and we just couldn't wait to get things moving. Big regret over our hastiness.

hazyjo

You should have been able to use a different solicitor at the same firm (presuming there's more than one solicitor!).

Do both flats share the front door, then you have your own separate front doors behind that (used to live in a conversion like that)? Or do you literally have the front door, and their front door is another outside door located elsewhere (again, I lived in one like that)?

If the former, it's surely shared space, not just yours? It would also make it a flat, surely (not a maisonette).

Jx

Babooshki

Hi hazyjo,

yes, we literally have our own front door, when you enter there is a short narrow corridor with stairs leading up to the main accommodation. Downstairs have their own front door too located next to ours and we share the [open] porch.

I still don't really know how big an issue it is or if the buyer's solicitor is just looking at tiny technicalities. She also has a major issue that the wooden stairs leading from the back door of our kitchen on a small landing down to the shared garden is not included in lease/title deed either.

Babooshki

To those who have replied, many thanks.

UPDATE: in regards to the defective title deeds I took the opportunity of contacting Land Registry recently to ask them directly if a mistake has been made in relation to what should be included in our lease and in the downstairs lease and they replied with a promising response as follows (amended to retain anonymity]:

"I have investigated the current leases and the original leases for both properties and none of them specifically refer to the hall and stairway, we would not make such an entry in the registers therefore. However, the description of [downstairs flat] in the property register of XXXXXX is qualified by the note that 'only the ground floor flat is included in the title' - such a statement would therefore exclude a separate hall and stairway because they do not form part of that flat.
The description of [upstairs flat] in the property register of XXXX is qualified by the note that 'only the first floor maisonette is included in the title' - the term maisonette is understood to include a separate hall and stairway on the ground floor for an upper (or first floor) maisonette without specifically referring thereto.
Please also note that both titles are registered with general boundaries. This means that the position of the red edging on the title plan shows only the general position of the title boundary and not the precise position of the legal boundary."

Unfortunately, the buyer's solicitors are unconvinced and are still demanding the deed of variation, even though it seems unnecessary given the above. I am seriously losing the will to live over this. I don't know what else I can do?? The EA has advised my husband and I that the buyer is quite willing to be contacted for an unoffcial discussion over this. Do you recommend we contact him & explain in detail why we believe his solicitors are a)incorrect b) alarmist c) wrong in their statement that no lender will lend on property when we have had a mortgage of 7 years and counting ourselves! Thank you for anyone who may have advice on this.