Who has not done their job properly, my conveyancer, purchasers solicitor or the Local Authority?

user1977

lincroft1710 said:

user1977 said:

Well, for starters are you now satisfied that there was such a grant provided under those conditions? If so then I expect the estate is liable.

Yes, it would have been helpful to everyone if the buyer (via their solicitors) had discovered the issue, but I don't think anybody owes you a duty to have done so. This is stuff deemed to be within your knowledge.

I rarely disagree with what you post, but if the OP had found no paperwork nor any charge placed on the property and answered all questions asked to the best of their ability, would they still be liable. I know there are differences between English and Scottish property law, but does not caveat emptor prevail.

But it sounds like there was a charge? Just that either nobody looked for it or did anything about it in the first sale.

And as between the estate and the council, I don't see why the estate wouldn't still be liable.

lincroft1710

user1977 said:

lincroft1710 said:

user1977 said:

Well, for starters are you now satisfied that there was such a grant provided under those conditions? If so then I expect the estate is liable.

Yes, it would have been helpful to everyone if the buyer (via their solicitors) had discovered the issue, but I don't think anybody owes you a duty to have done so. This is stuff deemed to be within your knowledge.

I rarely disagree with what you post, but if the OP had found no paperwork nor any charge placed on the property and answered all questions asked to the best of their ability, would they still be liable. I know there are differences between English and Scottish property law, but does not caveat emptor prevail.

But it sounds like there was a charge? Just that either nobody looked for it or did anything about it in the first sale.

And as between the estate and the council, I don't see why the estate wouldn't still be liable.

Well isn't that negligence on the part of the purchaser's conveyancer, not checking for such things?


 

lika_86

GTG said:

I sold a flat (exchanged contracts) in March 2022 as part of the work involved in the administration of an estate. I completed the administration of the estate in September 2022. Last week I received an email from the proprietor of the conveyancing firm I used for the sale of the flat. It was to tell me that the gentleman that I sold it to was selling it on and his purchaser's solicitor had done a local land search which revealed that there is a "Notification of approval of disabled facilities grant" which was registered in November 2014 and some of the grant would be repayable if the property is sold within 10 years. The deceased's paper work keeping was not his strong point so I acquired an incomplete set of records and I was not aware of the grant when doing the administration. The current owner/seller has asked my conveyancer to get it sorted and the conveyancer has asked for my comments. I paid the local authority who are the freeholders and manage the building for a leasehold pack which was sent to the conveyancer during the conveyancing process. 

Anyone got any advice as to the best way to proceed with this please?      

Surely the best way to proceed is to ask your solicitor whether you are in fact liable to pay this. Then take their advice.

But it sounds to me like the questions you should be asking are:
1. As the executor, is the estate liable (in general terms) to pay a grant back even in circumstances where the person who received the grant died before the 10 years were up?
2. If so, does the fact that the property has been sold mean that the liability to discharge the grant has now passed to the current owner? Or does the liability remain with the estate because the disposal to the current owner happened within 10 years?
3. If there is liability for you as the executor to pay this, how would/should/could you have known about this? And what can you now do about it?

user1977

lincroft1710 said:

user1977 said:

lincroft1710 said:

user1977 said:

Well, for starters are you now satisfied that there was such a grant provided under those conditions? If so then I expect the estate is liable.

Yes, it would have been helpful to everyone if the buyer (via their solicitors) had discovered the issue, but I don't think anybody owes you a duty to have done so. This is stuff deemed to be within your knowledge.

I rarely disagree with what you post, but if the OP had found no paperwork nor any charge placed on the property and answered all questions asked to the best of their ability, would they still be liable. I know there are differences between English and Scottish property law, but does not caveat emptor prevail.

But it sounds like there was a charge? Just that either nobody looked for it or did anything about it in the first sale.

And as between the estate and the council, I don't see why the estate wouldn't still be liable.

Well isn't that negligence on the part of the purchaser's conveyancer, not checking for such things?

Yes, if it results in a loss for their client. That doesn’t help the OP though.

Hoenir

GTG said:

 It was to tell me that the gentleman that I sold it to was selling it on and his purchaser's solicitor had done a local land search which revealed that there is a "Notification of approval of disabled facilities grant" which was registered in November 2014 and some of the grant would be repayable if the property is sold within 10 years. 

This would have been revealed in the search conducted on behalf of the purchaser when the property was sold in March 2022. Sounds as if it's been overlooked. Someone is now fishing. 

I'd merely state that you've no knowledge of the matter.  

mybestattempt

Hoenir said:

GTG said:

 It was to tell me that the gentleman that I sold it to was selling it on and his purchaser's solicitor had done a local land search which revealed that there is a "Notification of approval of disabled facilities grant" which was registered in November 2014 and some of the grant would be repayable if the property is sold within 10 years. 

This would have been revealed in the search conducted on behalf of the purchaser when the property was sold in March 2022. Sounds as if it's been overlooked. Someone is now fishing. 

I'd merely state that you've no knowledge of the matter.  

I think the solicitor acting for the first purchaser knows full well they should have found out about the charge when the OP was selling and is now hoping the OP knew about it at the time.

I also think the Estate remains liable for the charge, despite the OP being unaware of it until now.

If the OPs conveyance agrees then I would be asking the first purchaser's solicitors to at the very least cover the OPs legal and incidental costs incurred to remove the charge.

GTG

Tiglet2 said:

When you were selling the property, was there a charge on the registered title regarding the disabilities grant?  Some local authorities will place a charge against the property, that will have to be re-paid, if the disabled person moves out and sells the adapted property a few years after the works have been completed. 

I don't know about HMLR but obviously at the local authority land registry as the new purchaser's solicitor found it. 

It is very much buyer beware.  When a buyer and their solicitor are purchasing a property, it is their responsibility to make enquiries and do any due diligence necessary to ensure that they are buying a good and marketable title.   It would fall upon them to raise enquiries of your solicitor/you/the council in order that the charge could be removed, before the new owner could be registered.

I thought it was a bit of a joint effort between the vendor's and purchaser's conveyancers to ensure there will not be any disputed after the sale. 

As you were selling as Administrator, you wouldn't be expected to know anything much about the property.  Presumably the property was being sold with "limited title"?

That is an interesting angle on this. I do not have a copy of the contract of sale I signed (does anyone ask to look at these?) I took it in good faith that the conveyancer was acting to protect my interests so would expect that to be in the contract. Is that correct? 

First of all, I would check the paperwork when you sold to see if the charge is noted on the title.  If it is, then I would pass it back to the purchaser's solicitor via your solicitor to say that you were not aware of the charge as you were selling as Administrator with limited title guarantee and that they should have dealt with this during the purchase.

Would my conveyancer have provided me with copies of the title register during the conveyancing process? Also, I am guessing I need to ask for a copy of the contract of sale to see if the conveyancer has done the right thing for me as an Administrator and included a limited guarantee clause? Is that correct?

The monies owed to the council will need to be repaid though.

Yes, the deceased was definitely awarded the grant. Since my original post one of the beneficiaries (one of the sons of the deceased) has found some of the deceased's paperwork relating to one off works by the management company i.e. the local authority and the Notice of Approval of the Grant. They were in the back of an old photo album so not in my possession when doing the administration. 




 

Thank you very much to everyone for your help and especially to Tiglet, much appreciated! Sorry I do not have the time to reply to everyone. Tiglet I hope you can answer my new queries please see my replies in italics in the quote box above.

lincroft1710

If the paperwork relating to the grant has now been found, how much have been owed to the council at the time of the sale of the property?

GTG

lincroft1710 said:

If the paperwork relating to the grant has now been found, how much have been owed to the council at the time of the sale of the property?

A copy of the signed application has not been found but there is now no doubt in my mind that the deceased benefited from the grant. The notice makes it clear that the first £5,000 of the grant is excluded but all monies granted above that up to a maximum of £10,000 is repayable if the property is sold within 10 years of the certified date regardless of when, if that occurs within the 10 years. It does not define the certified date but there is an expiry date for exercising the right to the grant by having the work carried out within 12 months of approval. I assume that is also applied to the repayment terms.

Grumpy_chap

GTG said:

A copy of the signed application has not been found but there is now no doubt in my mind that the deceased benefited from the grant. The notice makes it clear that the first £5,000 of the grant is excluded but all monies granted above that up to a maximum of £10,000 is repayable if the property is sold within 10 years of the certified date regardless of when, if that occurs within the 10 years. It does not define the certified date but there is an expiry date for exercising the right to the grant by having the work carried out within 12 months of approval. I assume that is also applied to the repayment terms.

I suspect, if this amount was due, then it remains due by the Estate.  That may then fall on the Executor if the Estate has been wound up but one would like to think that the Beneficiaries would all be amenable to contributing back their share in proportion.  (Some may say they would like to think that pigs fly.)

These "claw back" agreements are all around the grant being awarded and ensuring the intended individual benefits, not the intended individual receiving the grant and then selling immediately to pocket the value of the enhancement.  In this case, clearly, the intended individual did benefit and never (intentionally) sold up to pocket the gain.  It may be that there is a clause that the "claw back" dies with the death of the individual.

It is quite important to establish the dates that the grant was awarded, the date the "claw back" period started and then the date of sale.  It is a "claw back" of £10k over ten years.  That probably reduces on a straight line basis so, if the period was 5 years before the death, that would mean £5k remains to be paid back, not the full £10k.
It is even possible that the full "claw back" period expired before the death and the charge was simply never removed from the property even though having no remaining value.