My seller pulled out the night before completion and six years on I am trying to rescind contract

AdrianC

tsolrm said:

AdrianC said:

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!

No, because it's not the OP's property. It's the vendor's.

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.

This all sounds to me like a clever way of scamming the buyer out of their deposit by the vendor.

And all the seller needs to do is to get themselves sectioned, then convince a psychiatrist they don't have mental capacity...

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.

^ This bit. With bells on.

princeofpounds

Well, if you have served a notice to complete, and it was ignored, then you probably move to clause 7.5 of the standard conditions of sale.

https://tlsprdsitecore.azureedge.net/-/media/files/topics/property/specimen-standard-conditions-of-sale-residential-property-2018.pdf?rev=36b3e84aea024ecbbfedefc01ec9d129&hash=0C2390831E8BF689D8BD9FB43C9643BC

I suspect that this is nothing more than a letter saying (in crude terms) 'Following failure to complete I am exercising my right to rescind the contract. Following SCS 7.5 please return to me the deposit with accrued interest immediately'. It's not like any particular form is mandated or anything. 

To repeat, I'm no lawyer, so I'm not saying you should do that without advice.

So, if a notice to complete isn't an issue, why has this next step not been done? It seems the simplest of tasks and to my layman's eye, should have been done years ago. It requires no court approval. Or, like the notice to complete, has it actually been done already?

teachfast

This is ridiculous.  How can someone sign a contract for something then, in law, completely absent themselves for completing the contract and handing over the goods?  If the contract was signed why did the sale not take place as agreed on completion day - monies handed over etc.?  The vendor must only have to be competent to sign the contract as that's when he takes the decision.  He doesn't need any level of competence on completion day.

How, and why, was it halted?  His solicitor shouldn't be stopping any process on the say-so of his client at that stage, especially if at that point he was unwell and unable to make an informed decision - it should have defaulted to the sale, not the non-sale.

HopeAndDriftWood

I have had no real life experience of this, but at uni we did a similar exercise. Typically you’d serve a notice to complete; giving ten days notice, and register a unilateral notice with the land registry. 

If the notice to complete didn’t work, you’d go to court, and the court would decide whether to force the sale or award damages. It may be that damages would have been awarded in this case, as “one party lacks capacity, making it difficult to enforce the contract” is a specified use of where damages should be awarded over forcing the sale, but typically buyers push for the sale to be forced... 

You’d then get a penal order, if the sale was forced, meaning that the seller would be in contempt of court if they refused to leave...

But I’m not sure how much this will be available to you now. And I’m not sure why it hasn’t been done... how close to six years are you? The statute of limitations may also make this messy, if you wait much longer. 

princeofpounds

teachfast said:

How, and why, was it halted?  His solicitor shouldn't be stopping any process on the say-so of his client at that stage, especially if at that point he was unwell and unable to make an informed decision - it should have defaulted to the sale, not the non-sale.

Sorry teachfast, the vendor does need to have competency to pursue completion in most instances - in particular, they need to confirm vacant possession of the property. 

teachfast said:

How can someone sign a contract for something then, in law, completely absent themselves for completing the contract and handing over the goods? 

Happens all the time, contracts not being performed. The issue is not really with the contract, it is difficulty achieving enforcement of a resolution through the courts, which makes it quite technical and much more an argument about legal competence and representation than anything.

davidmcn

teachfast said:

This is ridiculous.  How can someone sign a contract for something then, in law, completely absent themselves for completing the contract and handing over the goods?  If the contract was signed why did the sale not take place as agreed on completion day - monies handed over etc.?  The vendor must only have to be competent to sign the contract as that's when he takes the decision.  He doesn't need any level of competence on completion day.

Yes he does. He still needs to sign any deeds required for completion to be effected, (if he was living in the property) he needs to be able to move out, and his solicitor can no longer act for him without instructions.

princeofpounds

SaucySecrets said:

But I’m not sure how much this will be available to you now. And I’m not sure why it hasn’t been done... how close to six years are you? The statute of limitations may also make this messy, if you wait much longer. 

I think, but I'm not sure, that the statute of limitations in this case may be 12 years, as the contract would have been a deed.

Even so, no idea what the solicitors have been doing all these years...

Jude57

I'd also question what the OP's litigation solicitor has been doing all this time. This is surely a highly unusual situation that most solicitors will never encounter in their entire careers, and if the litigation solicitor wasn't clear on the law, they should have sought Counsel's opinion, which would have set out next steps. Was this done OP? If not, why not? You can seek Counsel's opinion yourself through the direct access scheme, see council.org.uk direct access portal to find a specialist property barrister to help you. It's not going to be cheap, but surely worth it to get this resolved and recoup your £50,000.

I'd also be lodging a formal complaint with the solicitor who, unless there is a lot more to this than we currently know, has allowed this to drag on for an unconscionable time. I take it, OP, that you have been chasing them up regularly?

flossie1968

Jude57 said:

I'd also question what the OP's litigation solicitor has been doing all this time. This is surely a highly unusual situation that most solicitors will never encounter in their entire careers, and if the litigation solicitor wasn't clear on the law, they should have sought Counsel's opinion, which would have set out next steps. Was this done OP? If not, why not? You can seek Counsel's opinion yourself through the direct access scheme, see council.org.uk direct access portal to find a specialist property barrister to help you. It's not going to be cheap, but surely worth it to get this resolved and recoup your £50,000.

I'd also be lodging a formal complaint with the solicitor who, unless there is a lot more to this than we currently know, has allowed this to drag on for an unconscionable time. I take it, OP, that you have been chasing them up regularly?

That;s a good shout in looking for a specialist property barrister. My original solicitor's firm went under two years ago which is how I have ended up with this one. And yes, having pestered the solicitor on a fortnightly basis for news and updates, I will be putting a complaint in at the end of this all. It's been totally unacceptable.

Seashell517

flossie1968 said:

Jude57 said:

I'd also question what the OP's litigation solicitor has been doing all this time. This is surely a highly unusual situation that most solicitors will never encounter in their entire careers, and if the litigation solicitor wasn't clear on the law, they should have sought Counsel's opinion, which would have set out next steps. Was this done OP? If not, why not? You can seek Counsel's opinion yourself through the direct access scheme, see council.org.uk direct access portal to find a specialist property barrister to help you. It's not going to be cheap, but surely worth it to get this resolved and recoup your £50,000.

I'd also be lodging a formal complaint with the solicitor who, unless there is a lot more to this than we currently know, has allowed this to drag on for an unconscionable time. I take it, OP, that you have been chasing them up regularly?

That;s a good shout in looking for a specialist property barrister. My original solicitor's firm went under two years ago which is how I have ended up with this one. And yes, having pestered the solicitor on a fortnightly basis for news and updates, I will be putting a complaint in at the end of this all. It's been totally unacceptable.

Don't wait. Find out who in the firm deals with complaints now, set out your complaint to them and state that if it isn't resolved then you will escalate to the legal ombudsman after 8 weeks.