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My seller pulled out the night before completion and six years on I am trying to rescind contract
Comments
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I assumed that mortgage has been agreed - so it is not clear at what point the process got broken down? So the deeds were never signed?davidmcn said:
Wouldn't they have to pay the rest of the price?tsolrm said:
But once the seller's solicitor has received the deposit - the property is yours?flossie1968 said:
The seller just refuses to interact with solicitors, mental health experts (although a psychiatrist finally did issue a certificate of incapacity last year). He has been through various solicitors who said he was not fit to give instructions. In the meantime my deposit is still sitting in his solicitor's account.tsolrm said:
Why is their capacity relevant to them packing up their !!!!!! and getting out of the property? If they are capable of exchanging (which is the legal bit) surely they are capable of completing which is just logisticsflossie1968 said:
It all hinges on the seller's capacity. And he hasn't got capacity. I just wondered if there was a templated letter I could send to the seller's solicitor to rescind the contract?tsolrm said:
Yes so isn't this a case of serving notice of completion and then the property is legally yours? At which point whoever is living there is a squatter?molerat said:
Because they are still contracted to buy the property. I suspect in a normal situation both sides could agree to call it quits but in this case the seller lacks the capacity to do this and no one has the right to do it for them. The usual case of the legal profession tying itself in knots over what can legally be done instead of what is obviously best for both sides - and no doubt charging handsomely for doing nothing.tsolrm said:I am really confused - why do you still not have your deposit back after 6 years?
It does sound like the buyer should be involving a different kind of solicitor here1 -
No, because it's not the OP's property. It's the vendor's.tsolrm said
But once the seller's solicitor has received the deposit - the property is yours? Mentally incapacitated or not - they are living at your property. Get them thrown the f out!
The OP is legally obliged to complete the contract - to buy it - but hasn't done so yet. The contract has never been completed. The OP has never bought it.
The vendor is not legally capable of selling it. There is nobody with the legal power to act on the OP's behalf in the sale. The law allows for somebody to be appointed - but the OP is being asked to cover the cost of that, and refuses to.
The OP wants to legally cancel the exchanged contract, and withdraw from the promise to buy. The vendor needs to agree to that. They aren't legally capable of doing that. There is nobody... etc.
Right now, the OP is simply owed money by somebody who isn't legally capable of paying it.
And that's assuming they can afford to.5 -
This all sounds to me like a clever way of scamming the buyer out of their deposit by the vendor.AdrianC said:
No, because it's not the OP's property. It's the vendor's.tsolrm said
But once the seller's solicitor has received the deposit - the property is yours? Mentally incapacitated or not - they are living at your property. Get them thrown the f out!
The OP is legally obliged to complete the contract - to buy it - but hasn't done so yet. The contract has never been completed. The OP has never bought it.
The vendor is not legally capable of selling it. There is nobody with the legal power to act on the OP's behalf in the sale. The law allows for somebody to be appointed - but the OP is being asked to cover the cost of that, and refuses to.
The OP wants to legally cancel the exchanged contract, and withdraw from the promise to buy. The vendor needs to agree to that. They aren't legally capable of doing that. There is nobody... etc.
Right now, the OP is simply owed money by somebody who isn't legally capable of paying it.
And that's assuming they can afford to.2 -
The mortgage offer will have expired long ago - so that may be an issue for a start. Even if the OP can get a current mortgage offer, the funds aren't going to be released unless they're going to get a good title (how to do that if the seller doesn't have capacity to sign anything or instruct solicitors?) and vacant possession (as above, problematic). Also things like searches would need to be updated, and in any event the OP's circumstances are likely to have changed in the past six years, so I doubt this is a great solution.tsolrm said:
I assumed that mortgage has been agreed - so it is not clear at what point the process got broken down? So the deeds were never signed?davidmcn said:
Wouldn't they have to pay the rest of the price?tsolrm said:
But once the seller's solicitor has received the deposit - the property is yours?flossie1968 said:
The seller just refuses to interact with solicitors, mental health experts (although a psychiatrist finally did issue a certificate of incapacity last year). He has been through various solicitors who said he was not fit to give instructions. In the meantime my deposit is still sitting in his solicitor's account.tsolrm said:
Why is their capacity relevant to them packing up their !!!!!! and getting out of the property? If they are capable of exchanging (which is the legal bit) surely they are capable of completing which is just logisticsflossie1968 said:
It all hinges on the seller's capacity. And he hasn't got capacity. I just wondered if there was a templated letter I could send to the seller's solicitor to rescind the contract?tsolrm said:
Yes so isn't this a case of serving notice of completion and then the property is legally yours? At which point whoever is living there is a squatter?molerat said:
Because they are still contracted to buy the property. I suspect in a normal situation both sides could agree to call it quits but in this case the seller lacks the capacity to do this and no one has the right to do it for them. The usual case of the legal profession tying itself in knots over what can legally be done instead of what is obviously best for both sides - and no doubt charging handsomely for doing nothing.tsolrm said:I am really confused - why do you still not have your deposit back after 6 years?5 -
You are all so right. I can;t afford to proceed now even if I wanted to as all my funds have been eaten up in fighting this. Mortgage offer expired, searches etc. My terribly slow solicitor has today said he will make arrangements to rescind the contract. Bearing in mind I asked him to do this in November, I would like to tell him I will do it myself but don't know how to. I could revert back to my original solicitor who dealt with the purchase (I later had to change to a litigation solicitor) but they want £1,000 on account up front to reacquaint themselves and proceed with rescinding the contract. Hence me asking if it was possible if I could rescind the contract myself.0
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What’s the solicitors excuse for not beginning to rescind the contract when you asked in November?I use ‘excuse’ as well as this is unacceptable after 6 years... seems like negligence to me atleast to some degree.4
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" I was anxious to get the law right in my head." To say I am upset is an understatement. If only there was a templated letter I could do it myself. Have even tweeted Martin Lewis asking!anteguardian said:What’s the solicitors excuse for not beginning to rescind the contract when you asked in November?I use ‘excuse’ as well as this is unacceptable after 6 years... seems like negligence to me atleast to some degree.0 -
This has become a complicated legal dispute. I don't think you are going to be able to get the advice you need here or from Martin Lewis!
No idea what your solicitor has been doing all these years... time to get a new one. I appreciate that you may not want to spend more money.
Recission is a complicated area of law. It's not just about sending a form. Just reading this guide (which isn't even specific to conveyancing) will give you an idea of the factors involved. https://hallellis.co.uk/rescission-contract-law-meaning/
The part (one of many) I don't understand - why did you not serve a notice to complete making time of the essence back in the day? Or did you? Failure to meet such a notice at least provides grounds for rescission; it isn't clear to me that you have grounds as things stand, although it's clearly the most equitable solution. Back then, the risk to you would have been minimal. Now, you presumably wouldn't be able to complete yourself, so I'm not sure what would happen.
Even if you do have grounds to rescind, you will need to go and get a court order to get the money back, and you still run into this issue of who represents the other side and how that is underwritten.6 -
Yes I did serve a notice to complete back when it first happened and the seller ignored it, like he has everything else. I do have the grounds to rescind but like you say it isn;t easy. Thanks for your comments, I really appreciate everyone's input on this. It has been a nightmare and everyone I speak to say they have never heard of this happening before....princeofpounds said:This has become a complicated legal dispute. I don't think you are going to be able to get the advice you need here or from Martin Lewis!
No idea what your solicitor has been doing all these years... time to get a new one. I appreciate that you may not want to spend more money.
Recission is a complicated area of law. It's not just about sending a form. Just reading this guide (which isn't even specific to conveyancing) will give you an idea of the factors involved. https://hallellis.co.uk/rescission-contract-law-meaning/
The part (one of many) I don't understand - why did you not serve a notice to complete making time of the essence back in the day? Or did you? Failure to meet such a notice at least provides grounds for rescission; it isn't clear to me that you have grounds as things stand, although it's clearly the most equitable solution. Back then, the risk to you would have been minimal. Now, you presumably wouldn't be able to complete yourself, so I'm not sure what would happen.
Even if you do have grounds to rescind, you will need to go and get a court order to get the money back, and you still run into this issue of who represents the other side and how that is underwritten.0 -
How though? The deposit is held by the solicitors pending completion, it doesn't go straight into the vendor's pocket.tsolrm said:
This all sounds to me like a clever way of scamming the buyer out of their deposit by the vendor.AdrianC said:
No, because it's not the OP's property. It's the vendor's.tsolrm said
But once the seller's solicitor has received the deposit - the property is yours? Mentally incapacitated or not - they are living at your property. Get them thrown the f out!
The OP is legally obliged to complete the contract - to buy it - but hasn't done so yet. The contract has never been completed. The OP has never bought it.
The vendor is not legally capable of selling it. There is nobody with the legal power to act on the OP's behalf in the sale. The law allows for somebody to be appointed - but the OP is being asked to cover the cost of that, and refuses to.
The OP wants to legally cancel the exchanged contract, and withdraw from the promise to buy. The vendor needs to agree to that. They aren't legally capable of doing that. There is nobody... etc.
Right now, the OP is simply owed money by somebody who isn't legally capable of paying it.
And that's assuming they can afford to.3
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