Charge on property not noticed by solicitors - who should be reimbursing?

ChasingtheWelshdream

I'm posting on behalf of a relative who seems to be getting conflicting information, and I can't seem to find similar situations online. I wondered if anyone had come across something like this before? I hope the following makes sense!

My mum purchased a flat two years ago (mortgage free). Nothing untoward was mentioned by the solicitor acting for her at the time. All searches were reported to be clear.

This year she sold the flat and discovered a significant amount deducted from the balance of the sale. The new solicitor explained this was to pay for and remove a charge on the property. This was the first my mum knew of any charge.

It transpires the charge was placed on the property by the local authority for disability adaptations completed by the previous vendor (a landlord, for his tenants), so nothing to do with mum. It should have been (discharged?) when she originally purchased the flat but was never picked up.

Her solicitor has requested the file from the previous conveyancing company, who discovered there was a mix up with the correct flat number being supplied originally (flat 1 vs flat 1a). During the original purchase, my mum was informed by the vendor that the address was incorrect. She immediately informed her solicitor and specifically asked if this would cause any problems. She was told everything was fine, and exchange took place a couple of weeks later.

The old conveyancer have provided written evidence of this exchange, but have not admitted any liability for not double checking the searches.

Her new solicitor dealing with the sale this time around has said the previous conveyancer was negligent and should have requested new searches, but his fees will make any claim not worth pursuing, unless she goes through the small claims court. She was told she will be out of pocket for doing this.

The original vendor admits the charge was his, but has basically shrugged his shoulders and not offered to reimburse her.

She is now circa £2k out of pocket, for a charge that was nothing to do with her, and never noticed during the conveyancing process during the purchase.

We're wondering what the best course of action would be now? Pursue the original vendor (still a landlord for the other flats in the block)? A formal complaint with the original conveyancing company? Small claims court (for who?)

Any ideas would be most welcome, as she is scared of suddenly being hit with a large bill from her solicitor if they do any more work for her. Until now, they have acted free of charge in liaising with the previous solicitor, but have indicated this will now stop - understandably.

Thanks in advance!

davidmcn

If the previous solicitor was negligent then it would make sense to pursue them. Though the vendor is probably also liable under the contract, and if she knows where he is then that's also an option. Conveyancers are probably less likely to stick their hand in the sand about it though and more likely to have £2k handy.

G_M

Well it will depend if the original conveyancer was negligent or not.

Her solicitor has requested the file from the previous conveyancing company, who discovered there was a mix up with the correct flat number
1) have they said this in writing? What exactly have they said/admitted? being supplied originally (flat 1 vs flat 1a). During the original purchase, my mum was informed by the vendor that the address was incorrect. She immediately informed her solicitor and specifically asked if this would cause any problems. She was told everything was fine, and exchange took place a couple of weeks later.

2) Again, does she have a letter/email etc from the original conveyancer saying this. What exactly does it say?

Instructing the current conveyancers to pursue this will cost money - it's not standard onveyancing so will not be included in their standard fee. At £100 - £150 per hour (check their fe structure), their fees will soon add up......

A DIY small claim against the original conveyancer is possible, and any court fees can be re-claimed if successful, but remember it would be a solicitor being sued so they'd know all the angles......

If there is legal cover included in building insurance, or via an employer or trade union, they might provide legal advice or assistance.

Failing all the above, follow the original conveyancer's internal complaints procedure. If they deny liability, or do not respond satisfactorily, escalate to the Legal Ombudsman.

ChasingtheWelshdream

Thank you both.

davidmcn wrote: »

If the previous solicitor was negligent then it would make sense to pursue them. Though the vendor is probably also liable under the contract, and if she knows where he is then that's also an option. Conveyancers are probably less likely to stick their hand in the sand about it though and more likely to have £2k handy.

The vendor is around, but not necessarily with a great reputation for being honest. They are the owner and freeholder of the remaining flats and a prominent local business owner (ironically the the Estate Agent who sold her the flat). They are well aware of the charge.

G_M wrote: »

Well it will depend if the original conveyancer was negligent or not.
2) Again, does she have a letter/email etc from the original conveyancer saying this. What exactly does it say?

I am trying to tread carefully as there were other issues discovered after the original purchase, which she blamed on the solicitor, but were in fact down to her naivety. I have her side of the story, apparently corroborated by her solicitor, but am still fact-finding over the exact words of all parties.

I have asked her to show me everything she has relating the purchase, but she appears to have thrown away a fair chunk as she "didn't think it would be needed anymore". She says she asked if the address correction would be an issue, and was told no. Apparently her current solicitor confirms this in an email, but I have yet to see the exact wording.

I have suggested she either requests her file from the original solicitor, or makes an SAR - would this be appropriate so I can then see exactly what she/they said?


Instructing the current conveyancers to pursue this will cost money - it's not standard onveyancing so will not be included in their standard fee. At £100 - £150 per hour (check their fe structure), their fees will soon add up......

This is the essence of the letter she received today - any fees incurred from now on could potentially be in excess of any reimbursement.

A DIY small claim against the original conveyancer is possible, and any court fees can be re-claimed if successful, but remember it would be a solicitor being sued so they'd know all the angles......


My thoughts exactly, and I would have thought unlikely to succeed without concrete proof. In which case, why would the conveyancer defend it and let it go to court? Although her current solicitor has (allegedly) said she would be liable for any court fees? I have no experience of legal action, and would rather not go down that route to be honest.

If there is legal cover included in building insurance, or via an employer or trade union, they might provide legal advice or assistance.

I have asked her to look - she is unsure if she included any on her premiums

Failing all the above, follow the original conveyancer's internal complaints procedure. If they deny liability, or do not respond satisfactorily, escalate to the Legal Ombudsman.

This is my gut instinct, assuming the paper trail confirms the situation. She actually spoke to the Ombudsman, following the suggestion from her solicitor, as a DIY option. They requested the conveyancer's final response before they could look at her case. She requested this from her current solicitor, who responded with "well we are still in discussions so best to wait a while longer."

This is where I'm hearing contradictions, and am unsure exactly what has/hasn't been said. From a letter saying 'we will charge you too much to bother going any further', to 'well we're not quite finished' via email seems odd. It is a little frustrating as I can't really help without knowing all the facts (and so far, everything I've heard from mum has been verbal)

From experience, she does get the wrong end of the stick. I'm thinking the first port of call is to get a copy of all correspondence for the minimum cost. Does my suggestion of an SAR sound feasible?

On a side note - and I don't know if this is has any bearing or not - is her current solicitor acted for the vendor in the original purchase. My understanding is the responsibility to highlight charges would still fall on the buyers' solicitor, not the vendors'?

The same solicitor still represents the vendor for other flats in the block (lease variations etc), but I can't see any conflict of interest as the cases are completely separate. I hope?

davidmcn

ChasingtheWelshdream wrote: »

Does my suggestion of an SAR sound feasible?

She can just ask for a copy of her file. Clients are entitled to that (subject to any reasonable charge for copying etc).

My understanding is the responsibility to highlight charges would still fall on the buyers' solicitor, not the vendors'?

Yes, it's almost certainly negligent of a buying solicitor not to prevent this happening (though I suppose it's possible that something went wrong at the registers which was outwith the solicitor's control).

The same solicitor still represents the vendor for other flats in the block (lease variations etc), but I can't see any conflict of interest as the cases are completely separate. I hope?

Ah, no. They're not going to accept instructions to sue an existing client. And probably shouldn't get involved in pursuing the other solicitors given that the claim may result in the vendor in turn being pursued for the amount involved.

agrinnall

davidmcn wrote: »

She can just ask for a copy of her file. Clients are entitled to that (subject to any reasonable charge for copying etc).

Surely than a SAR is a better option as it won't cost anything?

ChasingtheWelshdream

agrinnall wrote: »

Surely than a SAR is a better option as it won't cost anything?

That was my thinking.

I’ve spoken to her today and seen the letter from her solicitor. It says “I don’t think xxxx solicitors will budge without me issuing claim proceedings.” Which is then explained to be too expensive with no chance of recovering court costs.

I have advised her to ask the solicitor to stop further work to avoid escalating fees. Find out if the solicitor has a copy of the complete file as they had requested. If so, request a copy of this. If not available, request this from the conveyancing company, possibly with a SAR, depending on costs.

We can then look through everything and see exactly what is available in writing. If the case is as mum says, we’ll try the official complaint route, followed by the ombudsman if necessary.

If the evidence isn’t there, we’ll be back for more advice!

She remembers seeing a plan of her flat, which was definitely correct as it was the only one with a garden. Which then doesn’t make sense that a search was (potentially) carried out on a different property. But again, I need to see this to clarify.

One thought that occurs to me. If her current solicitor acted for the vendor originally, wouldn’t they have produced the draft contract on the wrong address, as given by his client? Searches or not, surely this would have had to be amended before exchange could have taken place?

I’m trying not to give personal details away, but the address ended up very different. Everything was prepared on ‘flat 2’, where the final address was ‘garden flat 1a’. This must have affected many things?!

G_M

I think I'd go in sequence


* copy of full client file (and pay for photocopying)
* escalate via complaints pocedure (likely to tickle out the relevant emails/letters tosupport any denial they make
* SAR
* Ombudsman
* Small Claims


Note Small claims: yes applicant has to pay (modest) court fees initially, but these get passed to the defendant if the applicant wins. Neither side can claim legal fees (solicitors) in the Small Claims Track, so no risk of horrendous legal fees if you lose.


But step one has to be get as much info as possible to see if there IS a realistic case.


Another aspect is that generally (buyer's) conveyancers wll pas Title documents etc to the buyer and ask: "is this correct? Please correct/thighlight any errors." It's not uncommon for a name or address tobe wrong, and the buyer has aduty of care as well as the conveyancer. Just glancing through and replying 'Fine' could put the responsibility back on the buyer!

davidmcn

agrinnall wrote: »

Surely than a SAR is a better option as it won't cost anything?

Strictly speaking, won't necessarily get you the whole file though. Not saying it's inevitable that she'd pay for copying, if anything like our office it's all in electronic form already anyway.

ChasingtheWelshdream

G_M wrote: »

I think I'd go in sequence


* copy of full client file (and pay for photocopying)
* escalate via complaints pocedure (likely to tickle out the relevant emails/letters tosupport any denial they make
* SAR
* Ombudsman
* Small Claims


Note Small claims: yes applicant has to pay (modest) court fees initially, but these get passed to the defendant if the applicant wins. Neither side can claim legal fees (solicitors) in the Small Claims Track, so no risk of horrendous legal fees if you lose.


But step one has to be get as much info as possible to see if there IS a realistic case.


Another aspect is that generally (buyer's) conveyancers wll pas Title documents etc to the buyer and ask: "is this correct? Please correct/thighlight any errors." It's not uncommon for a name or address tobe wrong, and the buyer has aduty of care as well as the conveyancer. Just glancing through and replying 'Fine' could put the responsibility back on the buyer!

Thank you, that is extremely helpful. :-)

I do wonder if there is indeed an element of not looking correctly, but we’ll see. There were several compliance certificates missing, but as mum hadn’t told the solicitor the flat was being refurbished/rewired etc, then there is no way they could have known to query them. I sincerely hope there is nothing similar here, and mum didn’t say something along the lines of ‘the address has is wrong but unless there’s a problem just carry on’.

I’ll keep you updated once I’ve seen more

ChasingtheWelshdream

Evening all. ��

I am still waiting to see the file but it seems there were mix ups with the address several times along the way, which has been really confusing to work out. At some point, both Royal Mail, utilities and the Local Authority had the flat listed with subtlety different addresses.

In another twist, the original memorandum of sale and vendor solicitor referred to the correct address initially, until the vendor changed it - before changing it back again! Confused? Me too!

Unfortunately, mum is still only telling me the things she remembers and insists she has disposed of everything else. She seems reluctant to just ask for the file, leading me to wonder if everything is not quite as it seems at first glance.

Could anyone confirm if a local authority charge would show on the Title Register? If so, would the charge be mentioned once it has been discharged? I’m wondering if downloading the plan/register would shed any light.

Or am I getting confused with the Local Search, which will hopefully be in the file (along with whichever address it refers to)