Problems with solicitors enquiries.

Danien

I'm not an expert, but my read of this were I in this situation, would be that the solicitor was using threats of the mortgage getting pulled in order to get me to buy an indemnity policy.

The knowledgeable people on here have stated that the risks the solicitor is suggesting are not real, yet the solicitor advises an indemnity policy for them and says 'well I can can advise the mortgage company that they pull the mortgage'

Maybe it's just my previous bad experience in this area talking, but it sounds dodgy to me.

jimbog

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.

....

Your solicitor is talking nonsense.  Ask them to state the specific legislation that would make this "illegal" and what powers the council has to "fine" you in this situation.

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.

If the kerb has been dropped then the council can't stop you using it.  If the kerb dropping hasn't been done by the council (or with the council's consent) then in theory the person who did the work committed one or more offences in carrying out work in the highway without the necessary consent or authorisation - but that would have been their offence, not yours.  You can use the streetview images to prove the work was done before your ownership.

If the council believe the vehicle crossover hasn't been constructed correctly then they could serve notice on you requiring you to agree to have it rebuilt (at your expense) but they cannot stop you using the crossover.

Whether it's illegal or not is a moot point if the council decide to put a bollard in front
 

EssexHebridean

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. 

Do bear in mind that if you are getting a mortgage, then the solicitor acting for you is either acting for your lender as well, or will be obliged to report to the solicitor who IS acting for the lender, about anything adverse they find that could affect the lender's security. They have to do this - they won't always want to do it, but they do have the obligation to do so. They certainly won't "tell you not to buy" but if they see something which in their view is potentially problematic to you in the future,  they may well also advise you against it. If that happens, then you will almost certainly be expected to sig a letter confirming that you are proceeding against their advice. The lender can also decline to lend to you for the property based on the report they get from their solicitor. 

Having said that, it does sound like there is some confusion around the dropped kerb with a view to exactly what the local authority's abilities are. We have heard of some cases where the local authority have, where a dropped kerb was installed without permission, have subsequently made it impossible to use, however, by for example installing bollards - that could well be a point of concern. (Just seen the post above - this is not an isolated "one off" situation either!) 

To the poster suggesting that the solicitor is in some way profiting from the suggestion of an indemnity policy - highly unlikely. Firstly there isn't generally a markup on policies of that type, and secondly, it will be the lender insisting on the indemnity policy is that is the case. 

Section62

jimbog 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.

....

Your solicitor is talking nonsense.  Ask them to state the specific legislation that would make this "illegal" and what powers the council has to "fine" you in this situation.

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.

If the kerb has been dropped then the council can't stop you using it.  If the kerb dropping hasn't been done by the council (or with the council's consent) then in theory the person who did the work committed one or more offences in carrying out work in the highway without the necessary consent or authorisation - but that would have been their offence, not yours.  You can use the streetview images to prove the work was done before your ownership.

If the council believe the vehicle crossover hasn't been constructed correctly then they could serve notice on you requiring you to agree to have it rebuilt (at your expense) but they cannot stop you using the crossover.

Whether it's illegal or not is a moot point if the council decide to put a bollard in front
 

The council installing bollards to prevent use of a driveway which has been there since at least 2014 would itself be illegal though - unless it was done:

1) as part of a planning enforcement process, and unless the planning enforcement was already underway (which the searches should reveal) then it would be too late now for the council to start down that route, or-

2) in Greater London, following the specific legal process that applies there, or -

3) having made an order in accordance with the Highways Act 1980 S124

Legally they cannot just turn up and install bollards as per the picture, especially not where the kerb has already been dropped. (in the case pictured the issue was the lack of a dropped kerb, and was in London where additional powers to do this exist)

The solicitor should be giving advice based on the actual law, not something they read in a tabloid newspaper.  The advice should address the issue of probability and level of risk, not just list any random 'what if' scenarios they can think of.

Danien

EssexHebridean said:

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. 

Do bear in mind that if you are getting a mortgage, then the solicitor acting for you is either acting for your lender as well, or will be obliged to report to the solicitor who IS acting for the lender, about anything adverse they find that could affect the lender's security. They have to do this - they won't always want to do it, but they do have the obligation to do so. They certainly won't "tell you not to buy" but if they see something which in their view is potentially problematic to you in the future,  they may well also advise you against it. If that happens, then you will almost certainly be expected to sig a letter confirming that you are proceeding against their advice. The lender can also decline to lend to you for the property based on the report they get from their solicitor. 

Having said that, it does sound like there is some confusion around the dropped kerb with a view to exactly what the local authority's abilities are. We have heard of some cases where the local authority have, where a dropped kerb was installed without permission, have subsequently made it impossible to use, however, by for example installing bollards - that could well be a point of concern. (Just seen the post above - this is not an isolated "one off" situation either!) 

To the poster suggesting that the solicitor is in some way profiting from the suggestion of an indemnity policy - highly unlikely. Firstly there isn't generally a markup on policies of that type, and secondly, it will be the lender insisting on the indemnity policy is that is the case. 

I didn't say profiting. There are other reasons to want a client to get an indemnity policy other than they need one.

EssexHebridean

Danien said:

EssexHebridean said:

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. 

Do bear in mind that if you are getting a mortgage, then the solicitor acting for you is either acting for your lender as well, or will be obliged to report to the solicitor who IS acting for the lender, about anything adverse they find that could affect the lender's security. They have to do this - they won't always want to do it, but they do have the obligation to do so. They certainly won't "tell you not to buy" but if they see something which in their view is potentially problematic to you in the future,  they may well also advise you against it. If that happens, then you will almost certainly be expected to sig a letter confirming that you are proceeding against their advice. The lender can also decline to lend to you for the property based on the report they get from their solicitor. 

Having said that, it does sound like there is some confusion around the dropped kerb with a view to exactly what the local authority's abilities are. We have heard of some cases where the local authority have, where a dropped kerb was installed without permission, have subsequently made it impossible to use, however, by for example installing bollards - that could well be a point of concern. (Just seen the post above - this is not an isolated "one off" situation either!) 

To the poster suggesting that the solicitor is in some way profiting from the suggestion of an indemnity policy - highly unlikely. Firstly there isn't generally a markup on policies of that type, and secondly, it will be the lender insisting on the indemnity policy is that is the case. 

I didn't say profiting. There are other reasons to want a client to get an indemnity policy other than they need one.

As a rule the primary driver is that it would protect client, mortgage lender or both in the event of any issues around the matter being insured. It's not usually much deeper than that, to be honest.  

Hoenir

Danien said:

I'm not an expert, but my read of this were I in this situation, would be that the solicitor was using threats of the mortgage getting pulled in order to get me to buy an indemnity policy.

Normally the case. As the cost of time they'll spend in attempting to resolve is disportionate to simply purchasing an indemnity policy. The indemnity policy is primarily for the benefit of the lender as it's more likely to be their money (the mortgage advance) at risk not yours. 

Jami74

An update. Apparently the local authority searches would have revealed the planning permission and highways licence had they been issued. Therefore it's likely that the driveway and kerb was installed without. Just waiting on the lender now to see if they'll change or withdraw the mortgage offer based on this new information.