Wrong Power of Attorney for house sale

Spiderroo

Our house purchase feels a bit like whack a mole - we’ve had problems getting an offer accepted, negotiating the price and with our mortgage. Got them all sorted and we were expecting to exchange about two weeks ago but the solicitor said our seller had a ‘minor’ paperwork problem with their onward purchase. 

It turns out the ‘minor’ problem is that their seller doesn’t have the correct Power of Attorney to sell the property on behalf of their poorly relative. This has only come to light 5 months after the chain was completed and no one can say how long it will take to sort out. 

Our solicitor thinks it could take 9 months to resolve unless the seller at the top can get an emergency order for the house sale. They’re chasing our seller’s solicitor to find out how far along the process is and they keep saying they’ll check timelines. Our solicitor also advised us to ask the estate agent to help (they’re selling both properties in our chain) but they’re not acknowledging our emails. We’re not expecting either party to fix it but an idea of what’s happening and how long it will take doesn’t seem an unreasonable ask. 

Has anyone had this situation when buying and it’s ended positively? Our mortgage offer ends at the beginning of January and a new one will cost us about £10k more in interest during the fixed period due to rising in interest rates. We’re also living in a rental after selling my partner’s flat, we were fine with this for a reasonable period but we don’t want to pay rent indefinitely as we’d like to be building up further equity. 

Beyond this, is there anyone you can flag problems like this to? I feel quite uneasy it’s got this far and the person at the top had no legal right to sell a vulnerable person’s property. I’m not saying they individually are dodgy but I’m surprised there’s no safeguards until it reaches the bit just before everybody exchanges. 

user1977

Spiderroo said:

Beyond this, is there anyone you can flag problems like this to? I feel quite uneasy it’s got this far and the person at the top had no legal right to sell a vulnerable person’s property. I’m not saying they individually are dodgy but I’m surprised there’s no safeguards until it reaches the bit just before everybody exchanges. 

Why do you want to "flag" it to anyone? It sounds like simply a c0ck-up. The safeguards are that the property can't actually be sold - that seems to be working fine.

lisyloo

Has the poorly relative lost mental capacity?

it sounds like they have a “health and welfare” POA and not the one for finances.
if the poorly relative is not able to make decisions then I’m afraid court of protection takes a long time. Around 6 months for COP alone, so I’d say 9 months is realistic.
I could be wrong but I don’t think a delay on a house sale qualifies as an emergency as far as the family courts are concerned (that would be risk of harm).

I did COP is around 6 months myself, but I suspect it’s slower with solicitors involved as of course they have other cases so won’t deal with things immediately

id remarket unless you buyer can raise the finance.

you could also have a word with your estate agent about what they can do to vet buyers. When I sold I was asked to provide copy of the COP application so at least they knew it had been applied for. However they may have limited ability to check further down the chain.

anmarj

If the relative doesn’t have capacity to grant the financial power of attorney then it would have to go through court of protection and that does take ages. A lot of people think that heath and welfare and or being third party on accounts is being financial poa, and can end up causing confusion. The person granting the poa, may have declined to do a financial POA too.  The POA may of simply said they held POA but did not clarify which was held etc. it happens. You will have to decide whether to wait or leave offer and look elsewhere 

lisyloo

anmarj said:

If the relative doesn’t have capacity to grant the financial power of attorney then it would have to go through court of protection and that does take ages. A lot of people think that heath and welfare and or being third party on accounts is being financial poa, and can end up causing confusion. The person granting the poa, may have declined to do a financial POA too.  The POA may of simply said they held POA but did not clarify which was held etc. it happens. You will have to decide whether to wait or leave offer and look elsewhere 

Someone should have checked though that the seller was in fact able to sell (unless of course illness has struck since instructions were given).
I was asked to provide a copy of COP application so everyone knew up front it was in progress.
to get this far without knowing people can sell is incompetent (unless of course it’s a changed circumstance).

TTM

I’m really sorry to hear this. 

Our purchase nearly fell apart a few weeks back due to a power of attorney issue.  Very fortunately for everyone involved a doctor declared the individual had capacity to sign and everything is back on track, but it nearly stopped the sale in it’s tracks. 

When we were first told about the problem, which was flagged by our solicitor, we were incredulous that the vendor’s solicitor had failed to pick up this small detail nearly five months into the process.

Keep_pedalling

They may just have ordinary POA which fails if the donor has loses their mental capacity. They will now need to apply for deputyship which takes a long time to do, and if the owner dies in the mean time, it will then be dependant on the executors obtaining probate.

Spiderroo

user1977 said:

Spiderroo said:

Beyond this, is there anyone you can flag problems like this to? I feel quite uneasy it’s got this far and the person at the top had no legal right to sell a vulnerable person’s property. I’m not saying they individually are dodgy but I’m surprised there’s no safeguards until it reaches the bit just before everybody exchanges. 

Why do you want to "flag" it to anyone? It sounds like simply a c0ck-up. The safeguards are that the property can't actually be sold - that seems to be working fine.

I think it’s the idea of someone with no relevant permissions inviting people into their home to consider buying it and then engaging solicitors which cost money at the incapacitated person’s expense. 

Spiderroo

lisyloo said:

Has the poorly relative lost mental capacity?

it sounds like they have a “health and welfare” POA and not the one for finances.
if the poorly relative is not able to make decisions then I’m afraid court of protection takes a long time. Around 6 months for COP alone, so I’d say 9 months is realistic.
I could be wrong but I don’t think a delay on a house sale qualifies as an emergency as far as the family courts are concerned (that would be risk of harm).

I did COP is around 6 months myself, but I suspect it’s slower with solicitors involved as of course they have other cases so won’t deal with things immediately

id remarket unless you buyer can raise the finance.

you could also have a word with your estate agent about what they can do to vet buyers. When I sold I was asked to provide copy of the COP application so at least they knew it had been applied for. However they may have limited ability to check further down the chain.

We don’t know how much capacity they have because we’re further down the chain and no one has told us anything further than they don’t have the right POA. The flat at the top of the chain is supported accommodation and they’ve moved somewhere else because they need more care than they can give so we know they’re not very well but that’s it.

We’re at the bottom of the chain so we can’t remarket - we’ve sold our flat ready to move and are in rented, our seller wanted a quick sale so it seemed perfect but they have nowhere to go until the POA is sorted and they can move into that property. If it’s going to be 9 months we may have to start looking for something new because waiting in a smaller rented property for well over a year isn’t ideal for us.

Spiderroo

TTM said:

I’m really sorry to hear this. 

Our purchase nearly fell apart a few weeks back due to a power of attorney issue.  Very fortunately for everyone involved a doctor declared the individual had capacity to sign and everything is back on track, but it nearly stopped the sale in it’s tracks. 

When we were first told about the problem, which was flagged by our solicitor, we were incredulous that the vendor’s solicitor had failed to pick up this small detail nearly five months into the process.

Thank you, it gives me a bit of hope to hear we’re not the only ones to find themselves in this mad situation and your solution didn’t take 9 months! We don’t know exactly how much capacity they have, just that they’re not very well and need a lot of care and support. 

macman

The EA is the most culpable here, as they shouldn't be taking sales instruction from anyone without establishing that they are either the legal owner, or have other authority to sell it.