Deed of Variation for error in lease

Jigglebiz

Help!

We are over 4 months into a sale of a 15yr old leasehold property and about a month ago the buyers sols insisted upon a deed of variation. The lease contains a contradiction about the amount of ground rent payable.

My solicitor has tried to offer all other avenues before going to the freeholder’s agent because they are so incredibly difficult to get hold of, and slow.

Buyers sol insisted on a DoV written by the freeholders managing agent. The fee is £1700. My solicitor said this was ridiculous and the most he’s ever seen. He thinks the request for the DOV is unecessary but the buyer’s sol is insistent.

We are desperate to sell this flat and have a purchase lined up although our buyer is purchasing the flat chain free (we are in rented).

Situation at the moment is my solicitor has made the undertaking to the freeholder saying we will pay up on completion. The freeholder is not getting back to his contacts and hasn’t been for at least 2 weeks. We are at serious risk of losing our buyer...I called the freeholder today and managed to get through. They told me that the freeholder hadn’t even agreed to do the DoV yet despite quoting for it and the undertaking being made for £1700!!

My question is that if we do end up losing the buyer over this would I have any recourse by returning to the solicitor we used to buy the flat (different person but at the same firm as my current solicitor)? Surely they should have spotted this error in the lease?

Advice very welcome

Thanks in advance

davidmcn

Jigglebiz wrote: »

My question is that if we do end up losing the buyer over this would I have any recourse by returning to the solicitor we used to buy the flat (different person but at the same firm as my current solicitor)?

Potentially, yes, but depends how significant the discrepancy is in the first place - if your buyer is just being pedantic and could live with e.g. an obvious typo then arguably there's no need to fix it.

Have you not already had an awkward discussion with your solicitor about the fact they bought it for you?

Jigglebiz

Have you not already had an awkward discussion with your solicitor about the fact they bought it for you?

I did ask this when he told me about it originally... he said something about it being multiple people’s fault for not spotting it ... but it was a different individual in a large firm. Worth pursuing?

Yes it does seem incredibly pedantic to get the DOV and my solicitor has said as such, but he also said that they have a duty to ‘clean up’ leases every time a property changes hands...

I’m wondering about contacting the buyer about this directly to see if he is aware. Risky?

SmashedAvacado

Can you not just get a letter from the landlord confirming the position instead. This is likely to be enough to satisfy most people.

davidmcn

Jigglebiz wrote: »

he said something about it being multiple people’s fault for not spotting it ... but it was a different individual in a large firm. Worth pursuing?

It's the firm that's responsible, irrelevant which individuals were involved. I would be putting the onus on them to sort it for you in the first instance anyway.

Jigglebiz

Thanks for the replies...

Can you not just get a letter from the landlord confirming the position instead. This is likely to be enough to satisfy most people.

Yes this was my solicitor’s first move, and it was refused by the buyers sol as they want a full DOV.

The current buyer is insisting on this coming from the freeholder and has refused my solicitors firm drawing up a DOV for the freeholder to sign. This would have been much cheaper.

Jigglebiz

I feel like my only movement here with the current buyer is trying to get them to accept something else. As I’ve said I’m happy to pay the ridiculous DOV cost to keep the buyer and get us over the line to completion , but the freeholder is so interminably slow.

SmashedAvacado

davidmcn wrote: »

It's the firm that's responsible, irrelevant which individuals were involved. I would be putting the onus on them to sort it for you in the first instance anyway.

i woudl say that them sayin "multiple" fault would make me say - well i was paying you to get this right - so in terms of who is liable to me - its you. You need to sort this. Ask the law firm to cover the cost of the DOV - they can give you an undertaking to pay - and otherwise ask to speak to the complaints partner and indicate to them that should you lose your sale, they will potentially be liable to you. if its a large firm, they will help you

Jigglebiz

I’ve emailed my solicitor’s line manager who I understand is who I go to for any complaints also.
I don’t know what I could materially ask for if this sale falls through? And how on earth would we resolve this if the freeholder is difficult about doing a DOV?

G_M

If your buyer (or his solicitor) is being unreasonable in his demand for/insistance on a DOV, then arguably your original solicitor was being reasonable in not requiring a DOV when you purchased.


On the other hand, if the issue with the lease is such that a DOV is reasonably required, then your original solicitor must have acted unreasonably/unprofessionally in not highlighting this to you when you purchased.


Without knowing the exact nature of the problem with the lease, and without understanding the alternative potential solutions (and whether they would reasonably resolve the issue), it's impossible for us to say which of the above two options applies.


but they cannot both apply..........

Jigglebiz

Good point G_M
Indeed, my solicitor is taking the first position that you listed ie. it is unreasonable to request a DOV for such a minor change which is in fact of no consequence whatsoever to the actual ground rent payable on the property now. It’s just pedantic. So by the same token could refuse any liability for not correcting it originally.
But how am I meant to know who is right? Involve another solicitor? I do actually have a good one working on my purchase...