Problems with solicitors enquiries.

user1977

Jami74 said:

The 'free' work includes lots of insulation and boiler. It has been recently installed under a government scheme and seller states that it was all free due to being on benefits. The solicitor is concerned that it might have been a loan which will need to be paid back somehow. 

Why would an unsecured loan to the seller need to be paid back by you? Your solicitor appears to be talking nonsense.

cbsexec

Will indemnity policies become the next miss selling scandal.  It seems to me that many solicitors are asking sellers impossible questions about things that were done before those sellers bought the property. Ie fencing sheds windows etc.  even asking for guarantees for work that was say done long before and said guarantee if available would be out of date.   The only way out to progress a sales seems to be paying for an indemnity policy - has anybody ever claimed on one?   I would just like to know out of interest 

Jami74

user1977 said:

Jami74 said:

The 'free' work includes lots of insulation and boiler. It has been recently installed under a government scheme and seller states that it was all free due to being on benefits. The solicitor is concerned that it might have been a loan which will need to be paid back somehow. 

Why would an unsecured loan to the seller need to be paid back by you? Your solicitor appears to be talking nonsense.

It's not an unsecured loan. It's work done under some sort of green scheme to improve energy efficiency which the seller says they were entitled to free of charge because they were on benefits. The solicitor is asking to see guarantee for the work done and confirmation that there is nothing owed and that the benefits of the work done transfer to the buyer (me). I think some schemes recoup the costs from the energy bills. I don't even mind if this is the case, but I do need to know. I don't know much about these schemes other than seeing 'You may be entitled to a free boiler' adverts. It seems too good to be true that the seller can get free boiler and insulation due to being on benefits and I get to reap the rewards simply by purchasing the property a couple of months later.

Section62

Hoenir said:

Section62 said:

Hoenir said:

Section62 said:

Jami74 said:

Thank-you everyone for your responses:

I can see on Google maps street view that the dropped kerb was installed sometime between 2012 and 2014 and in every street view picture there has been one or two vehicles on it. Quite a few properties in the street have had driveways and dropped kerbs installed. The house was sold in 2016 and both this time and last time it was advertised as having a driveway for 2 vehicles. I would have thought this would have come up when the current sellers bought the property. Does anyone know if there is a way of finding out from the council if the dropped kerb is legit? Offroad parking is important to us, it was one of the priorities on our list when looking. If we moved in we would use the dropped kerb and driveway, but seems like it would cause problems when we come to sell, unless there is a way to apply retrospectively. The sellers have not provided planning permission, building regulations approval and completion certificate for the works, a copy of the drop kerb consent and licence from the Local Authority’s Highways Manager. The solicitor advises that the dropped kerb is therefore illegal to use and if the council find out I will be in considerable trouble, in addition the solicitor will inform the lender and will likely devalue the property.

....

Personally I'd go further and tell the solicitor that if they inform the lender of this nonsense I would be making a formal complaint about them, but you might want to keep a reasonable working relationship with them and take a more tactful approach.

Solicitor is duty bound to report findings to their client. You cannot make a formal complaint about somebody following due procedure as required under the UK FINANCE MORTGAGE LENDERS' HANDBOOK FOR CONVEYANCERS. 

Fully aware of that. The complaint would be that their findings were incorrect, perhaps based on a failure to understand the relevant law.  'Due procedure' doesn't include making up legislation.

Lender makes the final decision. Not the solicitor. 

Complaining needlessly is becoming a National Pastime. 

Again, it isn't about the lender.  It is about the client having a reasonable expecation that a solicitor acting for them (and the lender) is diligent and exercises basic professional competence.

A solicitor telling their client "...that the dropped kerb is therefore illegal to use and if the council find out [they] will be in considerable trouble..." is just making things up, and arguably is not demonstrating basic competence for the work they are taking on.  If they suggest an indemnity policy as a way of overcoming a proplem (which doesn't exist in reality) then they may well be in danger of entering the territory of professional misconduct.

In a case like this - if the solicitor doesn't go away and do their homework and correct their misunderstanding - I think a complaint would be more than justified.  If people don't complain about professionals not doing their job properly then standards will continue to slip.

Jami74

A solicitor telling their client "...that the dropped kerb is therefore illegal to use and if the council find out [they] will be in considerable trouble..." is just making things up, and arguably is not demonstrating basic competence for the work they are taking on.  If they suggest an indemnity policy as a way of overcoming a proplem (which doesn't exist in reality) then they may well be in danger of entering the territory of professional misconduct.

Actually, sorry to cause confusion but that was my paraphrasing. The full blurb looks like more official and I think is quoted from the Highways act, it says the council might fine the homeowner for damage caused to the public highway or seek injunction to rectify damage etc. I think it's probably fine, quite a few in the street have them and I've read the application guidance for dropped kerb for the council concerned and can't see any obvious reason why it would be denied. I have emailed the solicitor to say there is a dropped kerb and the house previously sold with the dropped kerb.

The indemnity insurance is for the raised decking and shed in the garden.

I suppose to be more specific my questions are: Can the solicitor tell the lender that the dropped kerb is illegal based on the absence of paperwork rather than proof of illegality? And do I have to pay the solicitor for the indemnity insurance or can I ask them to proceed without? 

It feels like a stalemate but I don't want to pull out and then see someone else be allowed to buy it. Can the solicitor refuse to let me buy the house?

gm0

It feels like a stalemate but I don't want to pull out and then see someone else be allowed to buy it. Can the solicitor refuse to let me buy the house?

The solicitor you employ acts for you. Paid for by you.  They will raise every nugget of risk they find in gaps and overlaps of legal documents.  That is what conveyancing due diligence is for.   And they are covering their back that they have told you properly about all the findings.  And so discharged their liabilities in the contract they have with you.  For the avoidance of trouble later.

In the end the decision to exchange or not on the house, knowing what you know post due diligence - is yours - not theirs.  But you cannot be entirely passive - you may need to say - that's enough now - on some issues - 1,2,3. 

Nor can you expect them to resolve every detail. 

In fact as this experience amply demonstrates attempting total clarity and full documentation on all line items - can become actively counterproductive when the other side cannot (realistically) provide it (too long ago or different standards back then or whatever reason). 

The flip side of making your own decision is that you have nobody to blame when something that you were alerted to as a a risk - happens later.

The mortgage lender gets a chance to lend/not lend or lend a different amount as part of the process.

ThisIsWeird

Jami74 said:

A solicitor telling their client "...that the dropped kerb is therefore illegal to use and if the council find out [they] will be in considerable trouble..." is just making things up, and arguably is not demonstrating basic competence for the work they are taking on.  If they suggest an indemnity policy as a way of overcoming a proplem (which doesn't exist in reality) then they may well be in danger of entering the territory of professional misconduct.

Actually, sorry to cause confusion but that was my paraphrasing. The full blurb looks like more official and I think is quoted from the Highways act, it says the council might fine the homeowner for damage caused to the public highway or seek injunction to rectify damage etc. I think it's probably fine, quite a few in the street have them and I've read the application guidance for dropped kerb for the council concerned and can't see any obvious reason why it would be denied. I have emailed the solicitor to say there is a dropped kerb and the house previously sold with the dropped kerb.

The indemnity insurance is for the raised decking and shed in the garden.

I suppose to be more specific my questions are: Can the solicitor tell the lender that the dropped kerb is illegal based on the absence of paperwork rather than proof of illegality? And do I have to pay the solicitor for the indemnity insurance or can I ask them to proceed without? 

It feels like a stalemate but I don't want to pull out and then see someone else be allowed to buy it. Can the solicitor refuse to let me buy the house?

The decking and shed have been there since 2008? Waaaay beyond any Planning enforcement action - strange to suggest indemnity is required for this.

Jami74

Thanks all. It feels like the solicitor is saying I can't buy the house because the sellers haven't supplied stuff. I will talk to them today and ask them if we can just get on with it. None of the things seem as problematic to me as they do them. 

user1977

Jami74 said:

Thanks all. It feels like the solicitor is saying I can't buy the house because the sellers haven't supplied stuff. I will talk to them today and ask them if we can just get on with it. None of the things seem as problematic to me as they do them. 

The solicitor can't make you not buy the house. You can buy the house without even using a solicitor. But I'm not sure whether you've quite grasped that your solicitor is also advising the lender, so if they advise the lender not to lend (because problems they've identified haven't been resolved to their satisfaction), where are you getting the money from?

Section62

Jami74 said:

A solicitor telling their client "...that the dropped kerb is therefore illegal to use and if the council find out [they] will be in considerable trouble..." is just making things up, and arguably is not demonstrating basic competence for the work they are taking on.  If they suggest an indemnity policy as a way of overcoming a proplem (which doesn't exist in reality) then they may well be in danger of entering the territory of professional misconduct.

Actually, sorry to cause confusion but that was my paraphrasing. The full blurb looks like more official and I think is quoted from the Highways act, it says the council might fine the homeowner for damage caused to the public highway or seek injunction to rectify damage etc. I think it's probably fine, quite a few in the street have them and I've read the application guidance for dropped kerb for the council concerned and can't see any obvious reason why it would be denied. I have emailed the solicitor to say there is a dropped kerb and the house previously sold with the dropped kerb.

There is nothing in the Highways Act 1980 that would allow a council to 'fine' someone for having or using a dropped kerb to access their property.  Likewise the council cannot 'fine' a homeowner for "damage caused to the public highway" through normal use.  There is a provision (Section 59) which allows for 'Recovery of expenses due to extraordinary traffic' which in theory might possiby be applied in a case like this, however the council's costs in bringing a case to court are likely to far exceed the cost of damage to the footway from a homeowner driving across it to gain access to their property. (damage to utility equipment under the footway is a different matter, and you couldn't be fined for that).

The offence (if there is one here) might have been in the physical works on and in the highway required to unlawfully construct the crossover, but that wasn't done by you, and there is no evidence the crossover was unlawfully constructed.

Jami74 said:

I suppose to be more specific my questions are: Can the solicitor tell the lender that the dropped kerb is illegal based on the absence of paperwork rather than proof of illegality? And do I have to pay the solicitor for the indemnity insurance or can I ask them to proceed without?

As above, the solicitor is talking nonsense.  A dropped kerb can't be "illegal".  Doing the work to construct a dropped kerb might be unlawful if it isn't authorised by the highway and streetworks authorities, but that doesn't in itself make the dropped kerb (or use of it) "illegal". Using a footway or verge contrary to a notice issued under S184(1) may be an offence, but that doesn't make the dropped kerb "illegal".

Highway authorities don't have to maintain a register of "legal" crossovers, and many were constructed so long ago that no records are likely to exist. If they wanted to take some form of legal action then the burden would be on them to prove some form of illegality or unlawfulness.  That said, if someone goes through the process of applying for a dropped kerb then it would be sensible to keep all the paperwork as evidence in case asked for by a buyer's solicitor.

The absence of paperwork for the crossover/dropped kerb doesn't necessarily mean what the solicitor thinks it does.  If they tell the lender the crossover is "illegal" then they aren't doing their job properly.