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Scrupulous solicitor or red flags?

edited 30 November -1 at 1:00AM in House Buying, Renting & Selling
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KatieDeeKatieDee Forumite
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edited 30 November -1 at 1:00AM in House Buying, Renting & Selling
So we're now fairly far into our purchase. I started a thread a few weeks ago about how our vendor was denying all knowledge of a garage conversion, when we believed they had done the work themselves.

Well, it turns out they were telling the truth! We have the paperwork for the conversion, as well as boiler installation. The vendors solicitor has responded to queries about a conservatory (namely about permission from the Freeholder, which doesn't appear to have been sought) and they're continuing to deny responsibility because it was erected over ten years ago - suggesting that this doesn't require any paperwork. Solicitor disagrees and says the sellers are either "very naive or hiding something".

Solicitor has also picked up on an issue with a party wall at the back of the property and suggests we speak to the neighbour about arrangements regarding this. It's not clearly whether there is a wall there, or just conifers. Fortunately, the neighbour is the vendors cousin, so this shouldn't be too difficult.

He has been a fantastic solicitor so far and has invited us into his office to "discuss the issues in more detail". I'm a little bit anxious now, as I don't want this purchase to fall through, but I also don't want to purchase a property with issues.

Is this just our solicitor being dutiful and doing his job? Are these normal issues which are likely to be resolved through indemnity insurance, retrospective permission, etc? Or are they likely to scupper the purchase?
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  • SmashedAvacadoSmashedAvacado Forumite
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    What's the issue with the wall? The fact that there is a wall that might belong to two properties is neither here nor there unless there is an issue with it. Most walls don't need maintaining. they are just there.

    The garage consent is more of an issue - where they should have landlord consent and your solicitor should be asking for retrospective consent as when you come to sell it is what most buyers will want to see and without it, you could potentially have the landlord requiring its removal (although that is not that likely). Either way, if it is a breach of the lease, then the breach should be regularlised and the seller should pay. this might take 6 weeks to sort out and the seller will need to pay the landlord's fees.

    as is the boiler installation - where they should have got a building control certificate. The seller should pay for indemnity insurance to cover this if they did not get it.

    The question to ask your solicitor is what the bank's approach to with these issues are - which will likely be as i have explained above - and if so, it means its not your call - as the solicitor is also acting for the bank who will only lend if these types of issues are sorted.
  • KatieDeeKatieDee Forumite
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    What's the issue with the wall? The fact that there is a wall that might belong to two properties is neither here nor there unless there is an issue with it. Most walls don't need maintaining. they are just there.

    The garage consent is more of an issue - where they should have landlord consent and your solicitor should be asking for retrospective consent as when you come to sell it is what most buyers will want to see and without it, you could potentially have the landlord requiring its removal (although that is not that likely). Either way, if it is a breach of the lease, then the breach should be regularlised and the seller should pay. this might take 6 weeks to sort out and the seller will need to pay the landlord's fees.

    as is the boiler installation - where they should have got a building control certificate. The seller should pay for indemnity insurance to cover this if they did not get it.

    The question to ask your solicitor is what the bank's approach to with these issues are - which will likely be as i have explained above - and if so, it means its not your call - as the solicitor is also acting for the bank who will only lend if these types of issues are sorted.

    Thank you for your reply.

    In regards to the wall, his main comment on this is
    "There is a declaration in the lease that says all boundaries separating the property from other properties within the estate are deemed to be party walls and fences. It means, therefore, that you could end up having to cover half the cost of the retaining wall if it needs to be rebuilt."

    I assume he's just trying to make us aware of the wall, in the event that something goes wrong and we have to pay half of the repairs as per the Party Wall Act.

    We have everything for the boiler and gas installation, including the certificates, so no issues there. This was a sticking point for a while, but it looks as though they have found the paperwork after looking around.

    I think the conservatory is the biggest issue. The vendors are saying that the conservatory was built prior to their purchase of the property, so they have no paperwork in regards to permission from the landlord. I am sure this would have been given to them during their initial purchase, so perhaps they do have something, but their solicitor is using the line "it's over ten years old so we will not be providing paperwork".

    Just a few days ago our solicitor was asking us to go into his office to sign all the paperwork, and now on the receipt of the answers to our enquiries, he seems to be a bit concerned. I'm just trying to work out if we should panic, slam on the brakes and consider our options (again!) or whether this is just a relatively normal issue that can be overcome.

    He has suggested we still come into his office on the original date we planned to, so we can talk about the problems, but I thought this was a bit odd as normally he's extremely good at sending emails and seems to prefer this method. I suppose I don't want to wait a week, go into his office and be told "don't bother".
  • SmashedAvacadoSmashedAvacado Forumite
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    Yes - so paying half the cost of the wall is better than a situation where you own the whole of the wall and have to pay the whole of the cost. so i don't think there's a problem. its just information

    Over 10 years is not relevant from the perspective of leasehold permission unless the landlord was aware of it - it will cover you for failure to get planning and building regs. So if you have a leasehold property and there is a prohibition on alterations you should ask that this is regularised. This could just be a simple letter issued by the landlord confirming the works were historic and that no action would be taken in respect of them.

    My point overall is that your solicitor has called you in to discuss these issues, but you shoudl be asking the solicitor whether these are issues that allow him to proceed or not (based on the bank's requirements). don't make him make you decide. If you don't have a lender, make sure he is clear that you want the legal position to be "bankable".
  • KatieDeeKatieDee Forumite
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    Yes - so paying half the cost of the wall is better than a situation where you own the whole of the wall and have to pay the whole of the cost. so i don't think there's a problem. its just information

    Over 10 years is not relevant from the perspective of leasehold permission unless the landlord was aware of it - it will cover you for failure to get planning and building regs. So if you have a leasehold property and there is a prohibition on alterations you should ask that this is regularised. This could just be a simple letter issued by the landlord confirming the works were historic and that no action would be taken in respect of them.

    My point overall is that your solicitor has called you in to discuss these issues, but you shoudl be asking the solicitor whether these are issues that allow him to proceed or not (based on the bank's requirements). don't make him make you decide. If you don't have a lender, make sure he is clear that you want the legal position to be "bankable".

    I see what you mean now. We are using a mortgage to purchase the property, so I imagine there are a lot of things he needs to check are perfect before they will release the funds. I will call him today and ask for some clarification, as we're not able to get into the office until next Friday and I'd rather this didn't drag on if it is insurmountable.
  • SmashedAvacadoSmashedAvacado Forumite
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    I use the phrase - "if the bank is happy, i'm happy" ask him "please can you confirm that any of the issues you have identified would not cause a problem for the lenders". You don't need to see him to tell him this. I would be amazed if the lenders were comfortable on the lease issue. The others, i would probably take a view.
  • Section106Section106 Forumite
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    KatieDee wrote: »
    I assume he's just trying to make us aware of the wall, in the event that something goes wrong and we have to pay half of the repairs as per the Party Wall Act.
    That could be the case, but you really need to speak to him to find out what he means.

    He uses the words "retaining wall" - which potentially raises issues far more serious that you might have with a standard boundary wall. A defective retaining wall could pose a risk to the structure of the property (or the neighbours) and the cost of rebuilding a retaining wall is significantly greater than a standard boundary.

    What should ring some alarm bells is you say it isn't clear whether there is a wall or not and the mention of "conifers".

    If you don't know if there is a wall then presumably this isn't something you've had a surveyor take a look at? And the presence of trees means the potential for the wall to have been damaged by roots. I would be a bit concerned if this hadn't already been identified and looked at in the survey.

    Having a retaining wall as a party wall can be a blessing and a curse. Although you get to share the costs of repairs, you do also have the hassle involved in sharing responsibility. One side (usually the higher one) gets most of the benefits of the structure and normally has an incentive to make sure it is well maintained. The other side have to pay a share of the costs. That can lead to arguments about whether work is really necessary, and if it really needs to cost as much as it does. Sometimes it is better for the responsibility (and cost) to rest with just one party.
  • KatieDeeKatieDee Forumite
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    Section106 wrote: »
    That could be the case, but you really need to speak to him to find out what he means.

    He uses the words "retaining wall" - which potentially raises issues far more serious that you might have with a standard boundary wall. A defective retaining wall could pose a risk to the structure of the property (or the neighbours) and the cost of rebuilding a retaining wall is significantly greater than a standard boundary.

    What should ring some alarm bells is you say it isn't clear whether there is a wall or not and the mention of "conifers".

    If you don't know if there is a wall then presumably this isn't something you've had a surveyor take a look at? And the presence of trees means the potential for the wall to have been damaged by roots. I would be a bit concerned if this hadn't already been identified and looked at in the survey.

    Having a retaining wall as a party wall can be a blessing and a curse. Although you get to share the costs of repairs, you do also have the hassle involved in sharing responsibility. One side (usually the higher one) gets most of the benefits of the structure and normally has an incentive to make sure it is well maintained. The other side have to pay a share of the costs. That can lead to arguments about whether work is really necessary, and if it really needs to cost as much as it does. Sometimes it is better for the responsibility (and cost) to rest with just one party.

    Thank you very much for taking the time to reply.

    I've just dug out our survey and the surveyor did highlight this, saying the following:
    The rear boundary to the property is formed from a conifer hedge which did preclude a full inspection of this area. From viewing the property from out the first floor windows to the rear it is clear to see that the neighbouring dwelling to the rear of the property is significantly lower than the subject property. We are of the opinion that a retaining wall may form to this boundary and further enquiries should be made.

    I sent our solicitor a copy of our survey, so I assume this is what he is picking up on.
  • Section106Section106 Forumite
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    KatieDee wrote: »
    Thank you very much for taking the time to reply.

    I've just dug out our survey and the surveyor did highlight this, saying the following:

    I sent our solicitor a copy of our survey, so I assume this is what he is picking up on.
    On the basis of what you've said there are two issues then.

    Firstly, what is the condition of the retaining wall? If you cannot even see it on your side of the boundary that would be a bit of a concern to start with. Based on the surveyor's comments I would have wanted to get an inspection of the wall by a suitably qualified person.

    Secondly, it needs to be clarified who does own and is responsible for the wall. It seems there is an assumption being made that the wall is a party wall based on the declaration in the lease. It is possible though that the actual boundary is just in front of, or behind, the retaining wall. Shared ownership and responsibility for the wall should be confirmed, not assumed.

    Returning to your original question, a good solicitor should identify problems like this and bring them to your attention. A really good solicitor will identify the problems and help you find solutions. Sometimes people get annoyed with a solicitor for finding 'yet another problem', but in reality they are there to protect you (and the lender if there is one) against any enthusiasm to overlook issues in a search for a dream home.

    I would guess the solicitor thinks these issues need talking through face to face as communicating via email is great in some situations, but can leave room for doubt and uncertainty (which this thread itself is evidence of). Personally I would be very happy with a solicitor who wanted to meet to discuss the issues - far better that than having one who just communicates by email and wants to get the job done and the fees banked asap. Sometimes those conversations can bring up issues neither of you had thought of before.
  • da_ruleda_rule Forumite
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    As Section106 says, I would be looking for a full survey of the retaining wall just to check its condition.

    Also, as this is a lease, would works to that wall be solely your responsibility or form part of works to the block and therefore fall under the service charge provisions?

    With regards to the conservatory, another option might be an indemnity insurance policy. This will probably be relatively cheap and quicker than having to go to the freeholder for consent.
  • KatieDeeKatieDee Forumite
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    Section106 wrote: »
    On the basis of what you've said there are two issues then.

    Firstly, what is the condition of the retaining wall? If you cannot even see it on your side of the boundary that would be a bit of a concern to start with. Based on the surveyor's comments I would have wanted to get an inspection of the wall by a suitably qualified person.

    Secondly, it needs to be clarified who does own and is responsible for the wall. It seems there is an assumption being made that the wall is a party wall based on the declaration in the lease. It is possible though that the actual boundary is just in front of, or behind, the retaining wall. Shared ownership and responsibility for the wall should be confirmed, not assumed.

    Returning to your original question, a good solicitor should identify problems like this and bring them to your attention. A really good solicitor will identify the problems and help you find solutions. Sometimes people get annoyed with a solicitor for finding 'yet another problem', but in reality they are there to protect you (and the lender if there is one) against any enthusiasm to overlook issues in a search for a dream home.

    I would guess the solicitor thinks these issues need talking through face to face as communicating via email is great in some situations, but can leave room for doubt and uncertainty (which this thread itself is evidence of). Personally I would be very happy with a solicitor who wanted to meet to discuss the issues - far better that than having one who just communicates by email and wants to get the job done and the fees banked asap. Sometimes those conversations can bring up issues neither of you had thought of before.

    Oh don't get me wrong, I see this as a huge plus point as opposed to an inconvenience, and our solicitor has been absolutely amazing so far. He responds quickly, has picked up on things that we wouldn't have even considered - I wouldn't change a thing about him.

    I think we've just had some bad luck with properties so far and my major concern was whether or not this could affect the sale. I understand that as a solicitor, he has to ensure that everything is covered not only for us, but also for the lender. My thoughts were that if the issues were quite serious and he had concerns, we might have to consider whether it is the right property for us. However, we had considered this initially when the vendor was giving mixed answers about the conversion, which has all turned out well, so I don't want to assume the worse and allow myself to get spooked, if it's just standard conveyancing!

    I don't think I'm cut out for house buying :rotfl:
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