Solicitor has not issued Section 42 correctly

Soltan99

Hi All.

Bit of an issue which has left me in limbo somewhat.

I have recently cash purchased a leasehold flat with 69 years left. I informed my solicitor that I wanted a s42 notice served, so that the benefit can be transferred to me upon completion, thus not having to wait 2 years. They added this into the contract at the end as a rider stipulating the previous leaseholder solicitor must serve the notice.

Unfortunately one of the freeholders (husband) died just before exchange and completion so the previous leasehold solicitor did not serve the notice as they decided (and are currently still doing so) to wait until the executors of will have given them the new freeholder (even though the wife is now the only freeholder).

I have only just found this out (2 weeks after completion) after asking for the notice for my surveyor. My solicitor is still saying it is fine to serve the notice after completion but after a bit of research and after speaking with my lease surveyor who calculated lease extension costs I am not sure this is the case. I have lost a lot of trust in my solicitor as I do not feel they feel understand/understand this lease extension.

Can anyway shed any light on this. Has the ship sailed and I have missed the boat? or can it be retrospectively served due to one of the previous freeholders passing away and it being in a rider at the end of the contract?

Any help or advice will be much appreciated.

Kind regards

Soltan99

Im happy to post the rider that my solicitors have written in to the exchange contract. If that helps as I dont know how much legal weight the rider carries

eddddy

I agree with you - my understanding is that the notice cannot be served after completion. You'll now have to wait 2 years - and pay more.

The stuff about waiting for a new freeholder sounds like nonsense.

If it was a term in the contract that the seller was to serve notice before completion, that would put the seller in breach of contract. And the seller should be responsible for your resulting losses.

But it's worrying that your solicitor doesn't appear to understand the problem. e.g. It may complicate things if your solicitor told the seller's solicitor that it was ok to serve the notice after completion.

SmashedAvacado

Step 1 - insist the firm gives the file to another solicitor at the same firm to look at. Your contract / engagement letter will have details of who to speak to at the firm - it is an obligation on the law firm to provide details of the person handling complaints. They will take this seriously because their insurance can become compromised if they do not.

Step 2- If you get nowhere, then you should be able to instruct another lawyer to look at what your original lawyer has done, and if they have screwed up, claim the costs of this and damages / compensation for the negligence / breach of contract by your solicitors.

Tom99

Get the notice served as soon as possible, the freeholder might accept it. At 69 yrs remaining the freeholder is due quite a large premium and you will be paying all the fees so maybe they can do with the money now rather than at some uncertain time in the future.