Urgent New build completion issue and consent to register charges

londonflatbuyer

Hi there, I'm facing a bit of a situation with my new build purchase.

I am due to complete tomorrow on my flat (almost a year behind schedule but that is a different story...) and have run into an issue whereby the developer has a development loan secured against the block. My lender requires an undertaking from the seller's solicitor that they will obtain the existing bank's consent to register their interest as the lender on my flat. the seller's solicitor is stating that he cannot and will not provide such undertaking, however, in the same breath he has said that they will obtain the consent post completion and, as a big developer, they have done this "on thousands of flats."

My lawyer has tried to point out that, if he is so confident of the approval, it makes commercial sense for him to provide the undertaking but he is still refusing. he also states that as a consultant to and not an employee of the developer he can't provide the undertaking.

Has anyone come across this sort of situation before and how did you deal with it? I know others in the block have completed but they were either cash buyers who took a view on not having the undertaking or their lawyer must have been happy with it. My lawyer would proceed with completion despite no undertaking but unfortunately the bank's lawyer (I had to use two as mine was not on the panel) will not.

I have read the Law Soc's conveyancing regs and my view is that the seller's lawyer should be authorised to clear charges and provide such undertakings (as stated he should in the regs) and os he is potentially in breach of the regulations and can't hide behind his "consultant" defence.

I'm also of the view that the bank is protected by the implied covenants in the same regs and the laws surrounding purchase of property (I'm not a lawyer so don't have the full statute details to hand) that mean the vendor can't simply walk off with the money. Similarly the vendor is a big group who is not likely to screw us (although from my experience with banks they are driven by ticks in boxes and not taking views).

My lawyer has said she does not know what to do and unless one party backs down she can't see a way to get the bank to release funds. My last ditch attempt is to try and get my mortgage broker to lean on the guy he knows at the lender to see if he has a different interpretation to his lawyers and can go over their head, however this is a long shot!

I'm hoping someone here has come across the situation before and has an idea how to resolve it. Any help would be hugely appreciated! as you can imagine, with almost a year of delay I am keen to move in (not to mention not have to cancel the various furniture orders I have lined up).

Thanks!