Responsibility for establishing funds available before exchange

londonman42

Thank you PasturesNew.  That was my understanding as well.  So if the solicitor is doing proper due diligence then the conversation will go along the lines of 

- I can see an up-to-date bank savings deposit statement showing £100,000

- I can see a valid loan offer from Bloggs Mortage company for £200,000

- The sale of your own house will bring in £500,000

so you are OK to exchange contracts on your purchase for £800,000

Not

- I can see a bank savings deposit statement dated six months ago showing £100,000

- You tell me you have a mortgage offer for £200,000 but can't show me the offer

- The sale of your own house will bring in £500,000

so you are OK to exchange contracts on your purchase for £800,000

 As has happened here.  I call that professional negligence.  Or gross incompetence. Or both

londonman42

His lender has withdrawn. 

davidmcn

londonman42 said:

I call that professional negligence.  Or gross incompetence. Or both

Only if their client wanted advice about basic arithmetic. The purchaser's solicitor doesn't owe a duty to any other party to ensure funds will be available for completion.
Besides, a bank statement doesn't prove that the funds will actually be made available for completion, and mortgage offers can be withdrawn (or be subject to conditions which aren't going to be fulfilled until later).

londonman42

davidmcn said:

londonman42 said:

I call that professional negligence.  Or gross incompetence. Or both

Only if their client wanted advice about basic arithmetic. The purchaser's solicitor doesn't owe a duty to any other party to ensure funds will be available for completion.
Besides, a bank statement doesn't prove that the funds will actually be made available for completion, and mortgage offers can be withdrawn (or be subject to conditions which aren't going to be fulfilled until later).

I disagree.  The Law Society Conveyancing Protocol 2019 is very clear.

P15 - section 10    "Check availability of deposit".  He didn't.  The deposit never materialised until AFTER the failed first Completion date

p16- section 12 Provide the name of the buyer, price and other terms agreed. State whether there is any related sale(s) and extent of chain or any remortgage(s). Inform if buyer requires mortgage or any other funding. Inform promptly of any changes.
Not done.
p20 - section 14 Notify the seller’s conveyancer if expecting to be instructed by the lender or communicate the identity of any other conveyancer instructed by the lender when known.  Which implies that details should be known regarding any lenders ?
p22 - section 18 In full     Not done
p24 - section 20 Arrange for the contract to be signed and for the buyer to transfer the deposit, preferably electronically.  Never happened.

Regarding bank statements.  True...but then again if the bank statement, proferred in December, bears an August date then perhaps, just perhaps, the solicitor should ask for a more recent one ?

Yes, the solicitor doesn't owe a duty to any other party.  I can still complain to the Law Society.

davidmcn

Did they say they would be following the Protocol?

iampetesmith

When we bought ours, I emptied all of our savings accounts into my current account so that I had the deposit ready to go. It stayed there for a couple of months because of some delay in the purchase, but I don't remember our solicitor asking to see proof that it was all there.

They had bank statements at the start before we'd saved all the money for the deposit, but I don't think they saw that I had all the money until I actually paid them before exchange. I mentioned to them that it was all there ready to go, but they didn't have any statements that showed the full deposit so it was almost as if they just took my word for it.

londonman42

davidmcn said:

Did they say they would be following the Protocol?

Are you the Chairman of the "I Luv Solicitors" club ?

londonman42

I feel somewhat vindicated as the solicitor in question has now been 'de-partnered' if such a word exists.  Sacked in other words.

davidmcn

londonman42 said:

davidmcn said:

Did they say they would be following the Protocol?

Are you the Chairman of the "I Luv Solicitors" club ?

I'm trying to give you some (free) guidance about what you can legitimately complain about, so it would help if you answered my question first.

pinkteapot

Edit: Question already answered. Can't seem to delete post on this new forum?