Wrong Power of Attorney for house sale

lisyloo

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

Spiderroo said:

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. 

You’re right. Their estate agent should check they have the right to sell. Checking documents not just taking their word for it (as they could be innocently mistaken).
however as you say it’s harder in a chain.

sorry rather than remarket I’d look for something else assuming you don’t want to wait.

if you have free legal cover on your home insurance it might be worth a call to see if anyone is liable. The issue being that the EA who made the mistake probably has no liability towards you due to the chain.

Nobody is going to be liable to the OP.

Yes, ideally the EA ought to check that their client has POA - and they may have done so, just missed the detail of what sort of POA they had.

I think the main problem is the system in England where the parties don't bring in lawyers until relatively late in proceedings, and then the due diligence is done at a glacial pace - so even fundamental stuff like this can take weeks/months to be spotted.

I’m sure you are right but just for my curiosity can you explain why trying to sell something you aren’t entitled to sell isn’t fraud or misreprentation?

Do you mean as in criminal culpability? As with most crimes, you need criminal intent, and (as far as we know) the attorney here was simply mistaken about the powers that the POA actually granted them. It's no more "fraudulent" than a vendor who didn't realise they didn't have a title to all of their garden.

If you mean some sort of civil liability - for starters, this is about a transaction to which the OP isn't even a party, they just happen to be in the "chain". And I'm not convinced even the buyer in question would have a claim, again given the lack of intent.

i appreciate there is a chain and circumstances can change, but I’d expect EAs to check that someone is actually entitled to sell a house.
I guess it can be more complicated with LPAs and COP.

The trouble is you eventually reach a position where the EA needs to have their own, independent, legal advice in order to check the titles, POA, etc etc, before they can start marketing. Which might be a good idea, but who ends up paying for all that work, which eventually will be duplicated by the buyers' conveyancers anyway?

you don’t need legal advice to see who owns a property at the land registry

Don't you? Look at the number of threads here from people with queries about registered titles (let along the cases involving pending applications, unregistered titles, etc).

I was talking about basic checks.
i.e. The person signing the EA contract either has registered title, LPA (finance) or COP.
i doubt whether the EA went trough it with a fine tooth comb, but I would expect them to check the names match 
I.e. I have authorisation to sell and pass ID checks.

i will do my own  due diligence on the EA in future.
thanks for the eye opener.

Tiglet2

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

Spiderroo said:

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. 

You’re right. Their estate agent should check they have the right to sell. Checking documents not just taking their word for it (as they could be innocently mistaken).
however as you say it’s harder in a chain.

sorry rather than remarket I’d look for something else assuming you don’t want to wait.

if you have free legal cover on your home insurance it might be worth a call to see if anyone is liable. The issue being that the EA who made the mistake probably has no liability towards you due to the chain.

Nobody is going to be liable to the OP.

Yes, ideally the EA ought to check that their client has POA - and they may have done so, just missed the detail of what sort of POA they had.

I think the main problem is the system in England where the parties don't bring in lawyers until relatively late in proceedings, and then the due diligence is done at a glacial pace - so even fundamental stuff like this can take weeks/months to be spotted.

I’m sure you are right but just for my curiosity can you explain why trying to sell something you aren’t entitled to sell isn’t fraud or misreprentation?

Do you mean as in criminal culpability? As with most crimes, you need criminal intent, and (as far as we know) the attorney here was simply mistaken about the powers that the POA actually granted them. It's no more "fraudulent" than a vendor who didn't realise they didn't have a title to all of their garden.

If you mean some sort of civil liability - for starters, this is about a transaction to which the OP isn't even a party, they just happen to be in the "chain". And I'm not convinced even the buyer in question would have a claim, again given the lack of intent.

i appreciate there is a chain and circumstances can change, but I’d expect EAs to check that someone is actually entitled to sell a house.
I guess it can be more complicated with LPAs and COP.

The trouble is you eventually reach a position where the EA needs to have their own, independent, legal advice in order to check the titles, POA, etc etc, before they can start marketing. Which might be a good idea, but who ends up paying for all that work, which eventually will be duplicated by the buyers' conveyancers anyway?

you don’t need legal advice to see who owns a property at the land registry

Don't you? Look at the number of threads here from people with queries about registered titles (let along the cases involving pending applications, unregistered titles, etc).

I was talking about basic checks.
i.e. The person signing the EA contract either has registered title, LPA (finance) or COP.
i doubt whether the EA went trough it with a fine tooth comb, but I would expect them to check the names match 
I.e. I have authorisation to sell and pass ID checks.

i will do my own  due diligence on the EA in future.
thanks for the eye opener.

EAs generally don't bother to actually check whether the house they are selling is freehold or leasehold (though according to the Estate Agents' Code of Conduct, they should do so), so I cannot see that they are going to start checking that the person instructing them to sell the house is the same as the person named on the title deeds or has the authority to sell unfortunately.

I would like to see something changed in the system like having a legal pack prepared in advance for potential purchasers, similar to the Scottish system and the previous English HIP pack, but somehow it wasn't popular and no replacement has been found.

lisyloo

Mine did.
they didn’t just take my word for it.
i would have thought it would be in their interests but maybe it doesn’t go wrong often enough for them to bother.

i guess the lesson is to ask questions although I appreciate it gets harder with a chain.

user1977

Tiglet2 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

Spiderroo said:

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. 

You’re right. Their estate agent should check they have the right to sell. Checking documents not just taking their word for it (as they could be innocently mistaken).
however as you say it’s harder in a chain.

sorry rather than remarket I’d look for something else assuming you don’t want to wait.

if you have free legal cover on your home insurance it might be worth a call to see if anyone is liable. The issue being that the EA who made the mistake probably has no liability towards you due to the chain.

Nobody is going to be liable to the OP.

Yes, ideally the EA ought to check that their client has POA - and they may have done so, just missed the detail of what sort of POA they had.

I think the main problem is the system in England where the parties don't bring in lawyers until relatively late in proceedings, and then the due diligence is done at a glacial pace - so even fundamental stuff like this can take weeks/months to be spotted.

I’m sure you are right but just for my curiosity can you explain why trying to sell something you aren’t entitled to sell isn’t fraud or misreprentation?

Do you mean as in criminal culpability? As with most crimes, you need criminal intent, and (as far as we know) the attorney here was simply mistaken about the powers that the POA actually granted them. It's no more "fraudulent" than a vendor who didn't realise they didn't have a title to all of their garden.

If you mean some sort of civil liability - for starters, this is about a transaction to which the OP isn't even a party, they just happen to be in the "chain". And I'm not convinced even the buyer in question would have a claim, again given the lack of intent.

i appreciate there is a chain and circumstances can change, but I’d expect EAs to check that someone is actually entitled to sell a house.
I guess it can be more complicated with LPAs and COP.

The trouble is you eventually reach a position where the EA needs to have their own, independent, legal advice in order to check the titles, POA, etc etc, before they can start marketing. Which might be a good idea, but who ends up paying for all that work, which eventually will be duplicated by the buyers' conveyancers anyway?

you don’t need legal advice to see who owns a property at the land registry

Don't you? Look at the number of threads here from people with queries about registered titles (let along the cases involving pending applications, unregistered titles, etc).

I was talking about basic checks.
i.e. The person signing the EA contract either has registered title, LPA (finance) or COP.
i doubt whether the EA went trough it with a fine tooth comb, but I would expect them to check the names match 
I.e. I have authorisation to sell and pass ID checks.

i will do my own  due diligence on the EA in future.
thanks for the eye opener.

I would like to see something changed in the system like having a legal pack prepared in advance for potential purchasers, similar to the Scottish system and the previous English HIP pack, but somehow it wasn't popular and no replacement has been found.

Scottish Home Reports don't include any particular checks about the title, though in practice sellers will usually have instructed solicitors (who may also be doing the marketing), so there's more chance of basic things like the OP's problem being picked up before marketing.

Tiglet2

user1977 said:

Tiglet2 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

user1977 said:

lisyloo said:

Spiderroo said:

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. 

You’re right. Their estate agent should check they have the right to sell. Checking documents not just taking their word for it (as they could be innocently mistaken).
however as you say it’s harder in a chain.

sorry rather than remarket I’d look for something else assuming you don’t want to wait.

if you have free legal cover on your home insurance it might be worth a call to see if anyone is liable. The issue being that the EA who made the mistake probably has no liability towards you due to the chain.

Nobody is going to be liable to the OP.

Yes, ideally the EA ought to check that their client has POA - and they may have done so, just missed the detail of what sort of POA they had.

I think the main problem is the system in England where the parties don't bring in lawyers until relatively late in proceedings, and then the due diligence is done at a glacial pace - so even fundamental stuff like this can take weeks/months to be spotted.

I’m sure you are right but just for my curiosity can you explain why trying to sell something you aren’t entitled to sell isn’t fraud or misreprentation?

Do you mean as in criminal culpability? As with most crimes, you need criminal intent, and (as far as we know) the attorney here was simply mistaken about the powers that the POA actually granted them. It's no more "fraudulent" than a vendor who didn't realise they didn't have a title to all of their garden.

If you mean some sort of civil liability - for starters, this is about a transaction to which the OP isn't even a party, they just happen to be in the "chain". And I'm not convinced even the buyer in question would have a claim, again given the lack of intent.

i appreciate there is a chain and circumstances can change, but I’d expect EAs to check that someone is actually entitled to sell a house.
I guess it can be more complicated with LPAs and COP.

The trouble is you eventually reach a position where the EA needs to have their own, independent, legal advice in order to check the titles, POA, etc etc, before they can start marketing. Which might be a good idea, but who ends up paying for all that work, which eventually will be duplicated by the buyers' conveyancers anyway?

you don’t need legal advice to see who owns a property at the land registry

Don't you? Look at the number of threads here from people with queries about registered titles (let along the cases involving pending applications, unregistered titles, etc).

I was talking about basic checks.
i.e. The person signing the EA contract either has registered title, LPA (finance) or COP.
i doubt whether the EA went trough it with a fine tooth comb, but I would expect them to check the names match 
I.e. I have authorisation to sell and pass ID checks.

i will do my own  due diligence on the EA in future.
thanks for the eye opener.

I would like to see something changed in the system like having a legal pack prepared in advance for potential purchasers, similar to the Scottish system and the previous English HIP pack, but somehow it wasn't popular and no replacement has been found.

Scottish Home Reports don't include any particular checks about the title, though in practice sellers will usually have instructed solicitors (who may also be doing the marketing), so there's more chance of basic things like the OP's problem being picked up before marketing.

Ok, thanks for the information!

GDB2222

lisyloo said:

GDB2222 said:

I noticed that the OPG have a 'fast stream' for urgent applications. It might be worth mentioning, but that always assumes that the owner is capable of making a new POA.

Open to being educated but I would imagine the fast steam is for e.g. people at risk of harm not for people who desire to move home more quickly.
Worth looking into maybe but again hard from a remote position in the chain.

Yes, you must be right.

There are also ordinary powers of attorney, that don’t need registration with the OPG. If the seller still has capacity to make an LPA, they probably also have capacity to make an ordinary one at the same time. The attorney can then get on with selling the house, using the ordinary one.

I imagine that the problem in this case is that the seller doesn’t have capacity to do anything. Otherwise, the sale could proceed without an attorney. 

lisyloo

GDB2222 said:

lisyloo said:

GDB2222 said:

I noticed that the OPG have a 'fast stream' for urgent applications. It might be worth mentioning, but that always assumes that the owner is capable of making a new POA.

Open to being educated but I would imagine the fast steam is for e.g. people at risk of harm not for people who desire to move home more quickly.
Worth looking into maybe but again hard from a remote position in the chain.

Yes, you must be right.

There are also ordinary powers of attorney, that don’t need registration with the OPG. If the seller still has capacity to make an LPA, they probably also have capacity to make an ordinary one at the same time. The attorney can then get on with selling the house, using the ordinary one.

I imagine that the problem in this case is that the seller doesn’t have capacity to do anything. Otherwise, the sale could proceed without an attorney. 

Yes it does sound that way.
if they could give simple instructions from their sick bed then everything could proceed.
in my limited experience solicitors are quite risk averse when it comes to capacity and probably rightly so.
i am referring to situations where it’s not clear cut. With dimentia people can drop in and out of lucidity and I’ve heard of cases where solicitors won’t touch it with a barge pole.