Defective lease - help!

robskii

Around 4 years ago we bought a leasehold flat. Recently we tried to sell but the sale fell through after a 6 month conveyancing process as the prospective buyers claimed the lease is defective (and our new solicitors agreed). Specifically, they say the part of the lease that sets out the service charge to pay for the upkeep of the common areas is missing, and therefore there is no legal basis for the collection of part of the service charge, even though in reality this is collected each month. This problem applies to all flats in the block: around 65 of them. Our original solicitors did not alert us to this defect when we bought the property.

As I understand it to fix this will need a deed of variation and will be a big undertaking since there are 65 leaseholders + freeholder who would all have to sign up.

Now I know that there have been over 100 sales of property in the block since it was built, and all of these must have the same problem with the lease, so clearly many buyers are not noticing this or finding another way to proceed.

So my options as I see them:

• Do nothing, try and sell again and hope the next buyer's solicitor doesn't notice or can be persuaded it isn't a big problem.
• Write to my original solicitors myself and ask them to fix the problem. Having read the legal definition of negligence I think they have been negligent in this case. Point this out to them and ask them to fix everything at their own expense.
• Go to a litigation specialist and get tough with my original solicitors from the start.
• Forget about my original conveyancers, employ a good solicitor and get it sorted out at my own expense. In addition the management company are beyond useless so I imagine this could get costly, and I really don't want to end up paying to fix the whole block's problem.

I don't care about compensation I just want to get the flat sold as quickly and painlessly as possible. If I go and see a litigation lawyer I expect they will be inclined to recommend the third option above, but will this lead to a long drawn out and expensive process? Might it be better to write to my previous conveyancers myself first? Is there any hope of this succeeding? Will I jeopardise any future legal recourse by writing to them myself?

Any advice gratefully received!

G_M

Write to my original solicitors myself and ask them to fix the problem.

The problem with this (and other options!) is that it may well not be fixable.

As you rightly point out there are 65 leaseholders and a freeholder involved.

It takes only one of them to refuse, to scupper the 'fix'. Or one of them to be uncontactable (eg overseas resident).

I have a friend living in a private road with 18 houses and a similar defective setup to the road ownership and maintenance. One house-owner does not see why she should contribute to the road/communal gardens/drains etc maintenance and cannot be forced to pay. Do you think she'd agree to sign a redrafted document that obliged her to contribute......?

The others just have to live with it. At least until she sells. At which point the Directors of the Company could either decline to facilitate her sale, or more likely, assist her so as to hopefully get a more cooperative owner to deal with.

davidmcn

robskii wrote: »

Now I know that there have been over 100 sales of property in the block since it was built, and all of these must have the same problem with the lease, so clearly many buyers are not noticing this or finding another way to proceed.

Indeed. If you don't have evidence that it actually causes a problem then I don't see that it's worthwhile pursuing.

You certainly risk encountering a purchaser's solicitor who notices and wants to kick up a fuss, but unless that's the general opinion then you'd be struggling to find an expert who thinks your solicitor had been negligent.

robskii

Thanks both for the replies.

G_M wrote: »

I have a friend living in a private road with 18 houses and a similar defective setup to the road ownership and maintenance. One house-owner does not see why she should contribute to the road/communal gardens/drains etc maintenance and cannot be forced to pay. Do you think she'd agree to sign a redrafted document that obliged her to contribute......?

This is exactly the problem. If people stop paying then there is nothing to force them to (according to accounts everyone is currently paying), but of course if many people refuse to pay then common parts stop being maintained. Literally a tragedy of the commons....

Indeed. If you don't have evidence that it actually causes a problem then I don't see that it's worthwhile pursuing.

My sale fell through after 6 months conveyancing explicitly because of this reason. I have the solicitors letters to prove it, and the bills to show material loss.... From what I've read those two together equal negligence. But of course that doesn't mean it's worth pursuing, and as I said I'd rather this was sorted out than ending up suing someone, probably for a relatively small sum.

Also I think we were perhaps unlucky given the volume of successful sales. And if as G_M says it may be v.difficult/impossible to fix, perhaps best is just to try again with another buyer.

Does anyone think it worth writing to my original conveyancer, and could doing so prejudice my legal options or cause me problems with later sales?