Issue with title and solicitor thinking title is defective

wakib10

Hi , I am purchasing a property and my solicitor is adamant that because of this restriction on the title , the title is defective . RESTRICTION: No disposition of the registered estate (other than a charge) by the proprietor of the registered estate or by 1 of 2 Title number MAN16****

B:Proprietorship Register continued the proprietor of any registered charge, not being a charge registered before the entry of this restriction, is to be registered without a certificate signed by the proprietor for the time being of the estate registered under title number MAN***** that the provisions of clause 5.2 of the registered lease have been complied with From what I understand this restriction is common when there is a service charge on a property but this is what my solictor has said in response to this : We are of course familiar with restrictions placed on registers in relation to service charges. These normally indicate that a solicitor can certify through the land registry that the provisions of a Transfer Deed have been complied with. What we are not familiar with and indeed have never come across is a situation where the registered proprietor of a completely different title (in this case the Freehold) have the ability to hold up or stop the registration of a title. We pose this question to you, if it is the case that the certificate is not forthcoming from the owner of the Freehold title whoever that is then how could the registration be completed? If for example Wilson *** sold the Freehold reversionary title as happens on many occasions to example Simarc or Estates & Management who are well known in this sector and they require an exorbitant fee and don’t actually provide the certificate. We cannot understand how any solicitors who have acted on any of the properties in this estate and certify that the title is acceptable in its present form. We have reported the matter to our mortgagee and we await their instructions. Could I get someone’s advice on this please ? As everyone is saying this restriction is common so is my lender but my solicitor is having none of it . If my lender says they’re happy to go ahead and my solicitor advises me not to , end of the day is it my choice ? So if I still want to go ahead will they agree ? I would have changed solictors but my offer expired in a few months therefore I am skeptical . Thank you

user1977

wakib10 said:

If my lender says they’re happy to go ahead and my solicitor advises me not to , end of the day is it my choice ?

Absolutely. All your solicitor is doing is giving you (and your lender) advice. Up to you what you do with it.

Section62

wakib10 said:

Could I get someone’s advice on this please ? As everyone is saying this restriction is common so is my lender but my solicitor is having none of it . If my lender says they’re happy to go ahead and my solicitor advises me not to , end of the day is it my choice ? So if I still want to go ahead will they agree ? I would have changed solictors but my offer expired in a few months therefore I am skeptical . Thank you

If I've understood correctly, your solicitor is saying that whilst the principle is common, they have never come across it in this form, and can see a glaring risk in proceeding on the proposed basis.

Why wouldn't you want to follow the advice you are paying them to give?

Their job is to protect you (and the lender) from making an expensive mistake.  Ignore their advice at your own risk.

(INAL)

HopeAndDriftWood

I’d agree with them that the second part of that clause is uncommon and worrying; and I’d be surprised if any mortgage lender would go anywhere near it…

but as others have said, if you want to ignore the legal advice, you can. 

wakib10

Thank you so much !

wakib10

HopeAndDriftWood said:

I’d agree with them that the second part of that clause is uncommon and worrying; and I’d be surprised if any mortgage lender would go anywhere near it…

but as others have said, if you want to ignore the legal advice, you can. 

Hi , Thank you for your reply .

What I don’t understand is the fact this property has been sold twice before me therefore I would be the third owner. All previous sales also had lenders .

Could you confirm to me what you believe is uncommon ? I thought these restriction were common where a property is subject to a service charge 

wakib10

Section62 said:

wakib10 said:

Could I get someone’s advice on this please ? As everyone is saying this restriction is common so is my lender but my solicitor is having none of it . If my lender says they’re happy to go ahead and my solicitor advises me not to , end of the day is it my choice ? So if I still want to go ahead will they agree ? I would have changed solictors but my offer expired in a few months therefore I am skeptical . Thank you

If I've understood correctly, your solicitor is saying that whilst the principle is common, they have never come across it in this form, and can see a glaring risk in proceeding on the proposed basis.

Why wouldn't you want to follow the advice you are paying them to give?

Their job is to protect you (and the lender) from making an expensive mistake.  Ignore their advice at your own risk.

(INAL)

Good Afternoon , Thank you for taking your time to respond .

Of course , I am paying my solicitor to give me advice. The issue is , I also work at a law firm and I am training to be a solicitor. I have asked a few of my colleagues who also have years of experience in this field about the restriction and everyone’s stance is the same , that this restriction is common and there’s no underlying issue . My lenders legal team and vendors solictors  have also responded with the same .


Given all this and the fact two properties have already fallen through this year for me due to vendors pulling out last minute, I really do not want this to fall through and want to proceed based on the information I have got available to me .

My worry was the fact, my lender has said they’re happy to proceed after looking at the restriction and my sols saying he is still not happy, I don’t want my solicitor having the final say on whether I want to purchase this property or not . From everyone’s response , I can see that I will have the final say therefore this has eased my stress .

Thank you once again

Section62

wakib10 said:

Hi , I am purchasing a property and my solicitor is adamant that because of this restriction on the title , the title is defective . RESTRICTION: No disposition of the registered estate (other than a charge) by the proprietor of the registered estate or by 1 of 2 Title number MAN16****

B:Proprietorship Register continued the proprietor of any registered charge, not being a charge registered before the entry of this restriction, is to be registered without a certificate signed by the proprietor for the time being of the estate registered under title number MAN***** that the provisions of clause 5.2 of the registered lease have been complied with From what I understand this restriction is common when there is a service charge on a property but this is what my solictor has said in response to this : We are of course familiar with restrictions placed on registers in relation to service charges. These normally indicate that a solicitor can certify through the land registry that the provisions of a Transfer Deed have been complied with. What we are not familiar with and indeed have never come across is a situation where the registered proprietor of a completely different title (in this case the Freehold) have the ability to hold up or stop the registration of a title. We pose this question to you, if it is the case that the certificate is not forthcoming from the owner of the Freehold title whoever that is then how could the registration be completed? If for example Wilson *** sold the Freehold reversionary title as happens on many occasions to example Simarc or Estates & Management who are well known in this sector and they require an exorbitant fee and don’t actually provide the certificate. We cannot understand how any solicitors who have acted on any of the properties in this estate and certify that the title is acceptable in its present form. We have reported the matter to our mortgagee and we await their instructions. Could I get someone’s advice on this please ? As everyone is saying this restriction is common so is my lender but my solicitor is having none of it . If my lender says they’re happy to go ahead and my solicitor advises me not to , end of the day is it my choice ? So if I still want to go ahead will they agree ? I would have changed solictors but my offer expired in a few months therefore I am skeptical . Thank you

Have the solicitors suggested what you should do next, or are they just waiting for a response from the lender?

wakib10

Section62 said:

wakib10 said:

Hi , I am purchasing a property and my solicitor is adamant that because of this restriction on the title , the title is defective . RESTRICTION: No disposition of the registered estate (other than a charge) by the proprietor of the registered estate or by 1 of 2 Title number MAN16****

B:Proprietorship Register continued the proprietor of any registered charge, not being a charge registered before the entry of this restriction, is to be registered without a certificate signed by the proprietor for the time being of the estate registered under title number MAN***** that the provisions of clause 5.2 of the registered lease have been complied with From what I understand this restriction is common when there is a service charge on a property but this is what my solictor has said in response to this : We are of course familiar with restrictions placed on registers in relation to service charges. These normally indicate that a solicitor can certify through the land registry that the provisions of a Transfer Deed have been complied with. What we are not familiar with and indeed have never come across is a situation where the registered proprietor of a completely different title (in this case the Freehold) have the ability to hold up or stop the registration of a title. We pose this question to you, if it is the case that the certificate is not forthcoming from the owner of the Freehold title whoever that is then how could the registration be completed? If for example Wilson *** sold the Freehold reversionary title as happens on many occasions to example Simarc or Estates & Management who are well known in this sector and they require an exorbitant fee and don’t actually provide the certificate. We cannot understand how any solicitors who have acted on any of the properties in this estate and certify that the title is acceptable in its present form. We have reported the matter to our mortgagee and we await their instructions. Could I get someone’s advice on this please ? As everyone is saying this restriction is common so is my lender but my solicitor is having none of it . If my lender says they’re happy to go ahead and my solicitor advises me not to , end of the day is it my choice ? So if I still want to go ahead will they agree ? I would have changed solictors but my offer expired in a few months therefore I am skeptical . Thank you

Have the solicitors suggested what you should do next, or are they just waiting for a response from the lender?

I have a contact number for my lenders legal team , therefore I contacted them and heard their response regarding the referral. They said they’ll send the response to my sols by today .

my solicitor said that he is awaiting the response from the lender and also  said the following :  ‘I shall return to you as soon as I am able and I have all the information available. If that information leads me to advise you not to proceed then I shall do so.’

Section62

wakib10 said:

Of course , I am paying my solicitor to give me advice. The issue is , I also work at a law firm and I am training to be a solicitor. I have asked a few of my colleagues who also have years of experience in this field about the restriction and everyone’s stance is the same , that this restriction is common and there’s no underlying issue . My lenders legal team and vendors solictors  have also responded with the same .

....

Given all this and the fact two properties have already fallen through this year for me due to vendors pulling out last minute, I really do not want this to fall through and want to proceed based on the information I have got available to me .

My worry was the fact, my lender has said they’re happy to proceed after looking at the restriction and my sols saying he is still not happy, I don’t want my solicitor having the final say on whether I want to purchase this property or not . From everyone’s response , I can see that I will have the final say therefore this has eased my stress .

In which case.... were they not able to provide you with the reassurance you are asking (random internet strangers) for in the 2nd BiB?

Whether or not your solicitor has the final say was the easiest part of your situation to understand and answer???


What I would say (from years of getting professional legal advice) is that 'common' issues often don't get checked closely by legal professionals because routinely dealing with them creates a form of belief "it must be Ok" because it always has before.

Sometimes it takes a special kind of diligence and lateral thought to identify issues that other people miss - and solicitors who have those skills are worth their weight in gold.

Don't dismiss someone's concerns just because the majority of others don't see it the same way.

TripleH

I can't answer your query Op specifically but we were buying a new build conversion, our solicitor's advice was that the lease was defective and that we should not proceed unless it was rectified. Other apartments in the building had been sold (which had the same lease). The issue comes down to

1. Interpretation of the law, one solicitor might view things differently to another. Both might be right and wrong in equal amounts.

2. In our case the developer (and freeholder) promised they would correct the lease but we needed to exchange first. Once we exchanged the developer would have no reason or incentive to do as promised. We didn't use a local firm so they didn't know the developer or if they were good to their word, other local firms might have more faith

3. In new builds, using the recommended solicitor (by the developer) might mean the incentive is to get the deal finalised not work completely in the best interest of the buyer.

At the end of the day, you have paid for legal advice. If you change solicitor you might get a different opinion or you might not.