Exchange/Complete scheduled for tomorrow but there is a problem - need advice

jumperabv3

Flat_Eric said:

Retention basically means a sum of money is retained/kept back by the solicitors for the buyer or seller (depending on the circumstances) there is then a financial incentive for the outstanding issue to be resolved.

Thank you!

jumperabv3

davidmcn said:

Please just talk to your solicitor.

She's not available over the phone, so I will email her now, asking for the following:

• Exchange/Complete tomorrow with the indemnity option.
• Ask the solicitor holding the document to provide an undertaking to supply the document ASAP
• Retention - Retain a certain amount against this document.
• If the document is found the policy will be pointless (look for policies with 30 days cooling period so if the seller pays for it she at least would get her money back? - if such option exists?)
• If the document is not found - I will be covered by the policy
• Proceed immediately like this

Is that what you're all suggesting, more or less? I'm just trying to summarise it before I send off that email.
Also - what if the seller or the seller's solicitor refuses to do part of these? (asking hypothetically)

davidmcn

Just send it. She'll understand what undertakings and retentions are and whether they seem like solutions.

As I said, if this is just an investment purchase for you (and you're not sitting in a removal van) there's really no great urgency. I appreciate you'd like to get it done but it doesn't need to take up huge amounts of your time or stress, just let the solicitors sort it out as and when they can.

jumperabv3

davidmcn said:

Just send it. She'll understand what undertakings and retentions are and whether they seem like solutions.

As I said, if this is just an investment purchase for you (and you're not sitting in a removal van) there's really no great urgency. I appreciate you'd like to get it done but it doesn't need to take up huge amounts of your time or stress, just let the solicitors sort it out as and when they can.

Done. Will wait for the solicitor's response now.

My wife said we spent already too much time/energy on this despite the notion it should be effortless - also every day that goes by is a loss of rent (approx. £28/day), as without exchange/completion the rent is still payable to the seller, but I think my wife doesn't worry about the money here but just wants it over (she's barely moving now, having hard time to walk).

Also I haven't purchased a building (landlord) insurance yet and I've asked my solicitor to inform me if we really are going to exchange/complete tomorrow or not as I need to buy it and haven't done it yet because I don't have clarity of dates yet - likewise, we'd also need to fill out landlord form for the management company, tax forms, and there are other things to take care of, so it's not 100% only things for the solicitors to take care of. Reminding you we're going to be overseas so I have a duty of filing some paperwork in 2 countries and without definite dates we are actually a bit with stress (didn't imagine initially it would be like this but that's life).

jumperabv3

My solicitor has just replied to me as follows:

I have just had confirmation from the seller’s solicitor that they will provide an allowance on completion so we can pay for and purchase the indemnity policy.

With regard to the below, the solicitor will not be able to give an undertaking if they are not in control of the document itself but we can ask them to continue to pursue this even after completion.

We can draft a clause into the contract saying that the seller will use their best endeavours to locate and provide the original Transfer deed but the seller’s solicitor may not agree to such a clause as it leaves the seller quite exposed. In any event, negotiating the clause may delay things and we may therefore not be able to proceed tomorrow if this is how you would like us to go ahead.

Please would you let me know how you would like to proceed?

Exchange and completion is still possible tomorrow but the decision is up to you.

What would you do if you were in my shoes?!

greatcrested

My understanding from your first post was that the reason for the delay was that

* the document was in the seller's solicitor's office but

* the solicitors were prevented from accessing their office due to the terror attack

Now your solicitor is saying " the solicitor will not be able to give an undertaking if they are not in control of the document itself" which begs the question 'who has the document and where? If it is the seller's solicitor, no reasong for them not to give the undertaking. If it's someone else, are they, whoever they are, perhaps not within the cordoned off area...?

davidmcn

greatcrested said:

My understanding from your first post was that the reason for the delay was that

* the document was in the seller's solicitor's office but

* the solicitors were prevented from accessing their office due to the terror attack

Now your solicitor is saying " the solicitor will not be able to give an undertaking if they are not in control of the document itself" which begs the question 'who has the document and where? If it is the seller's solicitor, no reasong for them not to give the undertaking. If it's someone else, are they, whoever they are, perhaps not within the cordoned off area...?

I think it's the seller's previous solicitors who have it - that's who I was suggesting could give an undertaking (if they want to - they have no obligation to).

jumperabv3

davidmcn said:

I think it's the seller's previous solicitors who have it - that's who I was suggesting could give an undertaking (if they want to - they have no obligation to).

Yes, I explained this to my solicitor and she misunderstood me previously, so she's now checking it.

Jumblebumble

jumperabv3 said:

davidmcn said:

I think it's the seller's previous solicitors who have it - that's who I was suggesting could give an undertaking (if they want to - they have no obligation to).

Yes, I explained this to my solicitor and she misunderstood me previously, so she's now checking it.

I think you are fairly safe  to exchange if
Your Solicitor knows exactly what is in the Document having seen a copy
Your solicitor knows exactly where the original is and the holding solicitor gives an undertaking to send it
You have an proper indemnity policy in place
Then your only risk seems to be if the document gets lost before it gets to your solicitor
If these conditions are not met you may be about to experience a world of pain

jumperabv3

My solicitor replied as follows:

I will suggest the retention to the solicitor but I do not think the seller will be agreeable to this.

They have already agreed to pay for the indemnity policy and most people would consider this to be an acceptable solution to the problem.

I must also add that if a retention is agreed, a clause will still need to be negotiated to be inserted into the contract and this is likely to delay things tomorrow as a lot of specific details need to be discussed.

I've replied to that as follows:

Without retention (assuming they disagree but please check) - can we proceed based on the undertaking of the holding solicitor to provide the original document?

I'd like to have some sort of guarantee that the document will be provided if we exchange/complete now.
Waiting for her reply now.