Retention Problems

BillieDJ2996

Hello! Hoping someone can help!?

My partner and I bought our home on 30th July last week with a retention in place and we are now having some difficulties in getting it back.

During the purchase process, a damp survey was completed which showed there to be considerable damp in the property. The sellers/estate agent instructed a damp company to come out and they quoted for the work to be completed at approx 2.4K (1.9k ex vat). They agreed to this price and I have email and pdf proof of the quote and their confirmation via the estate agent. 

At the time of the quote we are considerably through the process and it was suggested to me by our conveyancer that it would be best to add a retention to our contract as revaluing the house would take more time as a new mortgage would have to issued etc. So a retention was put in the contract for 1.9k(the ex vat) value which was a mistake by our solicitor as it should have included vat. Bear in mind I do still have the email confirmations they agreed to the full 2.4k. There were also terms that we had to have the damp work completed within 6 months of completion. 

We had the damp work finished by early October. I have been chasing our conveyancers by email and phone ever since to get this money (3.5 months as of the date of this post). They have had no responses from the vendors solicitors until today where the vendors solicitors have replied: 

“We are not instructed to enter into any further communications with you and will therefore not respond to any additional emails from you”

Now I’m not sure what to do. I would like to contact their solicitors myself but I’m not sure whether I can do this. 

My conveyancers are extremely poor with communication and I have called nearly everyday for the past two weeks to sort this with empty promises of callbacks each time. 

My understanding is that the retention value would be held with the solicitors and then released to us when we have requested it but I’m unsure whether this email means the vendors have advised them to ignore us so they don’t have to pay and no money was ever retained by the solicitors.

I’m at my wits end and my thoughts now are that this will have to go to court but I’m unsure who I’d even be taking; is it the vendors, the vendors solicitors or my solicitors? 

Any advice would be extremely appreciated. 

BillieDJ2996

My partner and I bought our home on 30th July last *YEAR with a retention in place and we are now having some difficulties in getting it back.

*30th July 2021

TripleH

Was it specifically mentioned in the contract of sale about the retention? Check your paperwork.

If so then you chase your solicitors to chase the vendor's. Give your solicitors a deadline to send the response.

If it was not, you may well have to check over your emails and raise a complaint as to why it was not included in the contract.

If the money is in a client account somewhere, then it should be there to release to you on provision of the correct paperwork.

My worry is that it wasn't in the contract and no provision was made.

saajan_12

BillieDJ2996 said:

Hello! Hoping someone can help!?

My partner and I bought our home on 30th July last week with a retention in place and we are now having some difficulties in getting it back.

During the purchase process, a damp survey was completed which showed there to be considerable damp in the property. The sellers/estate agent instructed a damp company to come out and they quoted for the work to be completed at approx 2.4K (1.9k ex vat). They agreed to this price and I have email and pdf proof of the quote and their confirmation via the estate agent. 

At the time of the quote we are considerably through the process and it was suggested to me by our conveyancer that it would be best to add a retention to our contract as revaluing the house would take more time as a new mortgage would have to issued etc. So a retention was put in the contract for 1.9k(the ex vat) value which was a mistake by our solicitor as it should have included vat. Bear in mind I do still have the email confirmations they agreed to the full 2.4k. There were also terms that we had to have the damp work completed within 6 months of completion. - what exactly does the contract say regarding the seller paying for works? That's what would make them liable, for a certain remit of works, possibly upto a certain timeline and limited to a certain £ value. If THAT is limited to £1.9k then you're stuck with that.
Note the retention is just so you / solicitor have (some of) the money to hand rather than having to chase the vendor, but the amount may or may not be the same number as the limit above.  Who was the retention held with - your solicitor or theirs?

We had the damp work finished by early October. I have been chasing our conveyancers by email and phone ever since to get this money (3.5 months as of the date of this post). - make sure you have in writing, the date the works was completed and the date you're demanding the money (ie Oct21). Since we're now close to the 6 month point, you don't want them saying you're out of time 
They have had no responses from the vendors solicitors until today where the vendors solicitors have replied: 

“We are not instructed to enter into any further communications with you and will therefore not respond to any additional emails from you” - that's ridiculous (assuming the retention really is in place). You / your sols need to write to the seller and their solicitor clearly stating the cost of the works and demand for £ x by y date in line with the contract and with what they would have undertook to do. 

Now I’m not sure what to do. I would like to contact their solicitors myself but I’m not sure whether I can do this. 

My conveyancers are extremely poor with communication and I have called nearly everyday for the past two weeks to sort this with empty promises of callbacks each time. 

My understanding is that the retention value would be held with the solicitors and then released to us when we have requested it but I’m unsure whether this email means the vendors have advised them to ignore us so they don’t have to pay and no money was ever retained by the solicitors.

I’m at my wits end and my thoughts now are that this will have to go to court but I’m unsure who I’d even be taking; is it the vendors, the vendors solicitors or my solicitors? 

Any advice would be extremely appreciated. 

see in line

canaldumidi

Not sure which is more worrying: the problem getting the retention released, or the 'work' done by the damp company........

But as explained above, you need to check the contractual arrangement regarding the retention. Let us know the exact wording, and where it is quoted from, and we can advise further.

BillieDJ2996

TripleH said:

Was it specifically mentioned in the contract of sale about the retention? Check your paperwork.

If so then you chase your solicitors to chase the vendor's. Give your solicitors a deadline to send the response.

If it was not, you may well have to check over your emails and raise a complaint as to why it was not included in the contract.

If the money is in a client account somewhere, then it should be there to release to you on provision of the correct paperwork.

My worry is that it wasn't in the contract and no provision was made.

Unfortunately I can’t view the paperwork right now as I believe it was on our conveyancers online portal which is currently not working. I have asked them to send me the paperwork. However, I do have emails with the conveyancer where we confirms the value of the retention as the 1.9k which I advised was incorrect and he said he was going to speak to the vendor solicitor to adjust the clause. With this evidence surely our conveyancers have no grounds even if it wasn’t in the paperwork and we can get them for negligence?

BillieDJ2996

canaldumidi said:

Not sure which is more worrying: the problem getting the retention released, or the 'work' done by the damp company........

But as explained above, you need to check the contractual arrangement regarding the retention. Let us know the exact wording, and where it is quoted from, and we can advise further.

Sure thank you, I will post the wording in the contract once I have received it. See comments in last reply about emails confirming retention value by my conveyancer. If it’s not there I’ve got evidence to suggest it was. Is this not negligence on our conveyancers part?

BillieDJ2996

UPDATE 

I have received the contract and the clause was included. I have screenshot the exact wording in the picture below. 

My conveyancers advised they will contact them again chasing but I am expecting no response given their last reply.

I have emails on 11/10/21 from my conveyancer advising that he will be contacting the solicitors requesting the funds. The online portal is also now working and tracks emails and calls and shows he emailed their solicitors and responses from them which I later were told were auto replies from them so the emails were definitely hitting their inbox. 

GDB2222

There’s clearly been some sort of mess up. Perhaps the vendor's conveyancer forgot to retain the money? Anyway, you should ask your own conveyancer what’s gone wrong. 

The contract is clear enough, btw.

Tiglet2

If you provided your solicitor with evidence of the works and costs of the damp proof work completed in October 2021, then the Rider clearly states that once your conveyancer had submitted the documents and invoice to the seller's conveyancer requesting payment, then the sum of up to £1,880 would be paid out within 14 days.  Somehow something has gone wrong and it sounds as though the retention may well have been returned to the seller, though strictly speaking the six months retention finishes at the end of this month, not the beginning.

I'd be chasing your solicitor to find out what has gone wrong here.