Please Help My Seller Has Died

So_Near_But_So_Far

I exchanged on the purchase of a property mid-May 2021, with both parties ready for a completion a week or so later. The property is an executers sale with a number of beneficiaries to the estate. 

To say the purchase was complicated from the start is a massive understatement, it has taken many many months, but as this is unrelated to the problem I wish to solve now I will leave it to one side, I just thought I’d mention it so anybody reading knows stress level were already high.

Unfortunately the executer to the estate passed away in the early hours of the day of completion, meaning the transfer document was never signed.

Because my conveyancing solicitor was on a set fee for completing the purchase, from the point this happened I moved to an hourly fee, which (as usual) is eye-watering!

The sellers solicitors said they had made an emergency application to the Probate Registry to appoint one of the beneficiaries of the estate as an administrator/executer, and in the meantime have produced a licence to occupy the property that they are encouraging me to accept, I’m not inclined to do this as the document raises as many questions as it does answers, and of course the more queries I raise the higher the potential bill to my solicitor becomes.

I had already been pushed right to the wire financially to get to this stage and literally can’t afford any more if these fees keep increasing.

My conveyancing solicitor gave the impression that in such cases it would be usual for the seller to compensate the buyer’s for any additional costs, but when pressed couldn’t provide an answer to how they could ensure this happened.

So I instructed my solicitor to question the sellers solicitor as to whether they could confirm my costs would be covered, the reply was as follows;

Although the terms of the Contract permit the seller to charge a licence fee to the buyer for occupation we have not included a licence fee in the draft Licence in all of the circumstances and we hope therefore that your client will in return do his best to mitigate any losses or expenses.

As I saw this as less clear than I would have preferred I went back to my solicitor and instructed them to inform the sellers solicitor that I would do no more on the case until we receive confirmation in writing that my additional costs are going to be met. 

The reply I found more baffling;

We are unable to confirm that any costs and expenses that might be incurred by your client will be paid by the Estate of ***  ***  *** deceased because this would prejudice the Estate.  It must be a matter for your client as to whether or not he seeks to recover any costs that might be incurred.  Naturally, your client will have to justify any such costs which must of course be fair and reasonable and we hope that your client will mitigate any such costs so far as possible.

My solicitor had previously explained how I could serve notice on the sellers for not completing therefore giving them 10 days to complete or the contract would be rescinded, and then I could also claim compensation for my loses. I’ve currently not done this as obviously I still wish to buy the property, especially as I have spent many months getting to this stage.

Quite frankly I feel my conveyancing solicitors may be out of their depth and really don’t know what to do next, I also feel that the sellers solicitors are probably cocking-them-a-hoop in a way with their reply, saying “you should know how to proceed with this but obviously don’t”. In an ideal world a change of solicitor but I’m sure it’s far too late in the day to consider this.

Any help would be greatly appreciated, as would any links to documents that could help me ruffle the feathers of either side, so they understand I’m not happy to sit back and let the clock tick at my expense.

You might ask "well why don't you just do what you did initially and leave the instruction in place for your conveyancing solicitor not to do any more on the case". Well the reason for this is the previously mentioned complications mentioned at the top of my post, without going into too much detail to complicate issues further there are ongoing issues with the property which means information and questions are still coming through the sellers solicitors that need dealing with as they happen.

user1977

So_Near_But_So_Far said:

The reply I found more baffling;

We are unable to confirm that any costs and expenses that might be incurred by your client will be paid by the Estate of ***  ***  *** deceased because this would prejudice the Estate.  It must be a matter for your client as to whether or not he seeks to recover any costs that might be incurred.  Naturally, your client will have to justify any such costs which must of course be fair and reasonable and we hope that your client will mitigate any such costs so far as possible.

That's not baffling really. You have a contract, if they're already liable for your costs under that contract then (whenever you've added up what those are) you put in your claim. There's no need for them at this stage to admit liability or offer to pay £x.

TBagpuss

I agree- what they are saying is that they can't give a blanket assurance to cover your costs. They recognise that you have a potential claim fir costs and that you also have a duty to mitigate those costs (e.g. do what you can to minimise any costs). They also probably *couldn't* give you any more definite assurance as the executor has died and no one has yet replaced them. 

They have also explained that normally, if you had a licence to occupy there would be fees involved but they have not included any as they are not looking to charge you - they are trying to reduce the costs and delay caused by the death. 

Since you don't want to pull out, the licence to occupy lets you move in, so means you won't have to incur costs renting somewhere, staying in a hotel, or paying for your furniture to be stored, so it helps minimise the costs. 

Once completion takes place, at that time you will be able to quantify your actual costs - presumably these will be your additional legal costs, any costs you incurred in having to change the moving date, accommodation costs for the period until they were able to offer the licence etc. 

As to how you ensure that you get them - in a worse case scenario you would sue the estate to recover them. The executors will no doubt be advised to retain funds to cover these costs before distributing to the beneficiaries - it's in their interest s to do so as if they fail to take proper steps to administer the estate they could be personally liable. 

AdrianC

So_Near_But_So_Far said:

I exchanged on the purchase of a property mid-May 2021, with both parties ready for a completion a week or so later. The property is an executers sale with a number of beneficiaries to the estate. 

...

Unfortunately the executer to the estate passed away in the early hours of the day of completion, meaning the transfer document was never signed.

...

The sellers solicitors said they had made an emergency application to the Probate Registry to appoint one of the beneficiaries of the estate as an administrator/executer

They're doing all they can to get it signed and completed asap.
The death of the executor doesn't change anything about the estate's legal obligation to complete.
They remain liable for any reasonable expenses caused by the delay, with an expectation on you to mitigate them.

and in the meantime have produced a licence to occupy the property that they are encouraging me to accept, I’m not inclined to do this

Such is, of course, your prerogative.

But accepting this would allow you to move in, which will massively help to mitigate your costs arising from the delay in completion.

...as the document raises as many questions as it does answers, and of course the more queries I raise the higher the potential bill to my solicitor becomes.

I had already been pushed right to the wire financially to get to this stage and literally can’t afford any more if these fees keep increasing.

You don't have a lot of choice. You are as legally obliged to complete as the vendor is.

My conveyancing solicitor gave the impression that in such cases it would be usual for the seller to compensate the buyer’s for any additional costs, but when pressed couldn’t provide an answer to how they could ensure this happened.

Ultimately, you launch a small claim (assuming <£10k!) against them.

So I instructed my solicitor to question the sellers solicitor as to whether they could confirm my costs would be covered, the reply was as follows;

Although the terms of the Contract permit the seller to charge a licence fee to the buyer for occupation we have not included a licence fee in the draft Licence in all of the circumstances and we hope therefore that your client will in return do his best to mitigate any losses or expenses.

Translated from legalese, it's just saying "We could charge you to move in, but we won't. Don't take the mick with your costs."

If you don't take them up on that, and expect them to cover your costs, I hope you've got good justification.

As I saw this as less clear than I would have preferred I went back to my solicitor and instructed them to inform the sellers solicitor that I would do no more on the case until we receive confirmation in writing that my additional costs are going to be met. 

The reply I found more baffling;

We are unable to confirm that any costs and expenses that might be incurred by your client will be paid by the Estate of ***  ***  *** deceased because this would prejudice the Estate.  It must be a matter for your client as to whether or not he seeks to recover any costs that might be incurred.  Naturally, your client will have to justify any such costs which must of course be fair and reasonable and we hope that your client will mitigate any such costs so far as possible.

Translated from legalese, "We aren't admitting anything in writing, but of course we're liable for reasonable expenses. We'd rather you didn't, though. If you do, don't take the mick."

I'm not sure what else you expect them to say.

My solicitor had previously explained how I could serve notice on the sellers for not completing therefore giving them 10 days to complete or the contract would be rescinded, and then I could also claim compensation for my loses. I’ve currently not done this as obviously I still wish to buy the property, especially as I have spent many months getting to this stage.

Quite frankly I feel my conveyancing solicitors may be out of their depth and really don’t know what to do next

Nothing you've said indicates that.

I also feel that the sellers solicitors are probably cocking-them-a-hoop in a way with their reply, saying “you should know how to proceed with this but obviously don’t”.

That's not what their reply says.

In an ideal world a change of solicitor but I’m sure it’s far too late in the day to consider this.

It won't help.

Any help would be greatly appreciated, as would any links to documents that could help me ruffle the feathers of either side, so they understand I’m not happy to sit back and let the clock tick at my expense.

You might ask "well why don't you just do what you did initially and leave the instruction in place for your conveyancing solicitor not to do any more on the case". Well the reason for this is the previously mentioned complications mentioned at the top of my post, without going into too much detail to complicate issues further there are ongoing issues with the property which means information and questions are still coming through the sellers solicitors that need dealing with as they happen.

Too late for "I need more information". You've exchanged. If the executor hadn't died, you would have completed by now.

Look, it's very simple...

The executor is the person who needs to sign the paperwork.
They can't, because they have the best possible excuse... They're dead.
They're trying their hardest to get somebody in place to sign it. That will take a bit of time.

You have a right to have reasonable expenses covered.
You also have an obligation to minimise them.

There's a solution that minimises them AND gets you moved in asap...
But you don't want to take it...

Jenni_D

So_Near_But_So_Far said:

Because my conveyancing solicitor was on a set fee for completing the purchase, from the point this happened I moved to an hourly fee, which (as usual) is eye-watering!

This caught my eye ... if completion hasn't yet occurred then why are they now on an hourly rate?

pinkteapot

I would move in under the licence. At work I had to organise an office move last year and due to solicitor delays in getting the final lease written we moved in under licence because we were getting turfed out of our old premises. Formal licences to occupy are pretty standard (used more rarely in domestic housing I expect). As others have said, this means you can move in while things get sorted. 

Also agree with the others that you simply won't get something in writing to say "We agree to pay all your costs." That's never going to happen because it would open them up to a huge (and potentially unreasonable) claim from you. They've done what they can in saying "We'll pay your costs so long as they're reasonable - make a claim once you know what your costs are and we'll review it." That's as good as you'll get. 

Get moved in, keep a clear record (with receipts/solicitor bills/etc) of all the extra costs incurred because of the delay to completion, then make a claim against the estate. 

If you move in under the licence you'll be minimising your costs because you won't do the notice to complete thing - you'll just move in and wait for the executor issue to be resolved, then complete. Your solicitor doesn't need to do anything in the meantime. 

Jumblebumble

So_Near_But_So_Far said:

I exchanged on the purchase of a property mid-May 2021, with both parties ready for a completion a week or so later. The property is an executers sale with a number of beneficiaries to the estate. 

To say the purchase was complicated from the start is a massive understatement, it has taken many many months, but as this is unrelated to the problem I wish to solve now I will leave it to one side, I just thought I’d mention it so anybody reading knows stress level were already high.

Unfortunately the executer to the estate passed away in the early hours of the day of completion, meaning the transfer document was never signed.

Because my conveyancing solicitor was on a set fee for completing the purchase, from the point this happened I moved to an hourly fee, which (as usual) is eye-watering!

The sellers solicitors said they had made an emergency application to the Probate Registry to appoint one of the beneficiaries of the estate as an administrator/executer, and in the meantime have produced a licence to occupy the property that they are encouraging me to accept, I’m not inclined to do this as the document raises as many questions as it does answers, and of course the more queries I raise the higher the potential bill to my solicitor becomes.

I had already been pushed right to the wire financially to get to this stage and literally can’t afford any more if these fees keep increasing.

My conveyancing solicitor gave the impression that in such cases it would be usual for the seller to compensate the buyer’s for any additional costs, but when pressed couldn’t provide an answer to how they could ensure this happened.

So I instructed my solicitor to question the sellers solicitor as to whether they could confirm my costs would be covered, the reply was as follows;

Although the terms of the Contract permit the seller to charge a licence fee to the buyer for occupation we have not included a licence fee in the draft Licence in all of the circumstances and we hope therefore that your client will in return do his best to mitigate any losses or expenses.

As I saw this as less clear than I would have preferred I went back to my solicitor and instructed them to inform the sellers solicitor that I would do no more on the case until we receive confirmation in writing that my additional costs are going to be met. 

The reply I found more baffling;

We are unable to confirm that any costs and expenses that might be incurred by your client will be paid by the Estate of ***  ***  *** deceased because this would prejudice the Estate.  It must be a matter for your client as to whether or not he seeks to recover any costs that might be incurred.  Naturally, your client will have to justify any such costs which must of course be fair and reasonable and we hope that your client will mitigate any such costs so far as possible.

My solicitor had previously explained how I could serve notice on the sellers for not completing therefore giving them 10 days to complete or the contract would be rescinded, and then I could also claim compensation for my loses. I’ve currently not done this as obviously I still wish to buy the property, especially as I have spent many months getting to this stage.

Quite frankly I feel my conveyancing solicitors may be out of their depth and really don’t know what to do next, I also feel that the sellers solicitors are probably cocking-them-a-hoop in a way with their reply, saying “you should know how to proceed with this but obviously don’t”. In an ideal world a change of solicitor but I’m sure it’s far too late in the day to consider this.

Any help would be greatly appreciated, as would any links to documents that could help me ruffle the feathers of either side, so they understand I’m not happy to sit back and let the clock tick at my expense.

You might ask "well why don't you just do what you did initially and leave the instruction in place for your conveyancing solicitor not to do any more on the case". Well the reason for this is the previously mentioned complications mentioned at the top of my post, without going into too much detail to complicate issues further there are ongoing issues with the property which means information and questions are still coming through the sellers solicitors that need dealing with as they happen.

The sellers solicitors must be delighted that your solicitor told them you were going to do nothing further if they did not agree to open ended costs

user1977

Jenni_D said:

So_Near_But_So_Far said:

Because my conveyancing solicitor was on a set fee for completing the purchase, from the point this happened I moved to an hourly fee, which (as usual) is eye-watering!

This caught my eye ... if completion hasn't yet occurred then why are they now on an hourly rate?

Presumably because they've now moved on to an abnormally complex case, covered in the caveats to whatever the original fee quote was.

FaceHead

- Accept the license to occupy. As you have so far rejected their offer of a free place to live, you are failing to mitigate your current housing costs. Therefore your current housing costs are not recoverable from the estate, so it's in your interest to move in pronto and avoid your current costs.
- Relax and wait for them to sort out completion whilst unpacking and getting comfy in your new home.
- After completion make a claim for your additional costs e.g. legal and extra moving costs, anything arising from the delay, and your housing costs up to the point they made the offer of the license to occupy. This should be a letter by your solicitor to the new executor, who will likely cough up out of the estate's monies.

[Deleted User]

out of interest,  why were you inclined to not accept the license to occupy?   If you incur legal costs as a result of clarifying any terms in this then they would be recoverable as an expense.   Your costs at the moment probably wouldn't be unless you can evidence a good reason that this offer was unacceptable 

GDB2222

I don't think you can expect a blanket agreement to whatever bills you happen to run up. Otherwise, you might decide to move into a suite at The Ritz until this is sorted out. The sellers sound like they are being reasonable and want to get this sorted out fairly.

In your position, the very first thing I would do is ask your solicitor for a quote for advising you on the terms of the licence. Then I would write to the sellers as follows:

"I would like to take up your offer of a licence, but I need legal advice on its terms, and my solicitor has quoted £XX. Please confirm that you will meet this specific cost."***

I expect that they will say yes. If they prevaricate, please post what they say. 

I suppose that the fundamental question is whether you still want to go ahead with the purchase? 

Also, have you served a completion notice?


Edit: *** Get your solicitor to write this on your behalf.