Deed of Rectification Nightmare....help!

MickyLuvsMac

Hello all, this is a bit of a nightmare so please bear with me. 

We put an offer in for a leasehold flat which was accepted in June 2023.  The sellers are a a housing association and they have been quite awful in everything...but we stuck at it, because it is a really nice flat and now, we've waited for so long and spent too much money on surveys etc to be able to look anywhere else. I'll break it down into a list so that it is easier to read...

1. Last March, our solicitor noticed an error on a lease for one of the other flats (groundfloor) in which a drawing (for indicative purposes only apparently) mistakingly included the communal areas as belonging to the ground floor flat.
2. Our solicitor said that a Deed of Rectification would need to be drawn up and the current leaseholder of the ground floor flat would have to agree to it. Unfortunately, the leaseholder has some serious longstanding issues with the Housing Association in question - such as...all of the electricity (4) meters are inside her property!  ..and so she refuses to agree to the DoR...even thought there are two flats above her and the communal areas have been in use for over a decade. 
3. in the end, because she would not agree the housing association decided to contact the Land Registry and open up an application.  I must say that the Land Registry were quite brilliant in terms of time and were really efficient. However after their initial assessment in which they said that the wording of the lease was sufficiently clear to show that the communal areas were NOT part of the demise...they then changed their mind for some reason and gave this as a reason...I don't quite understand it tbh...

"You have applied for alteration of the Lease dated 9 September

1996 between (1) The Council of (Removed by Forum Team) and (2)

.Removed by Forum Team) (the lease) to note the exclusion of the stairwell

and common parts from the lease.

This application is on the basis that the description of the flat in the

Lease does not include the common entrance and stairs. That the

use is required to access flats on the 1st and 2nd floors and that the

access has been used for many years without dispute.

When an application for alteration can be considered:

The registrar may alter the register in accordance with Paragraph 5,

Schedule 4, Land Registration Act 2002 for the purpose of:

"(a) correcting a mistake,

(b) bringing the register up to date,

(c) giving effect to any estate, right or interest excepted from the

effect of registration, or

(d) removing a superfluous entry."

Rule 129 Land Registration Rules 2003 requires that any application

for alteration include evidence to justify the alteration.

As there is no written description of the property in the Lease that

would contradict the plan then the plan being described as for

identification only is not conclusive of any invalidity. We cannot.

therefore, be satisfied that there are grounds for alteration on the

basis of the evidence provided"

The lawyer has particularly had in mind the judgment in Lyle v

Richards (1866). This set out where the deed is ambiguous the

Courts will try to ascertain the true intentions, but oral evidence

cannot be considered if it contradicts a deed. As the deed does not

contradict itself oral evidence about intent would not be sufficient.

As we have not identified a mistake on the register capable of being

the subject of an application for alteration based on the documents

registered then, in order for alteration to occur, the deed the register

details arise from would need to be altered. In this case it is, in fact,

an alteration of a deed that appears to be the intent of your

application in any event.

Apology:

The lawyer realises that their decision contradicts the earlier opinion

of HM Land Registry given in correspondence dated 21 October

2024, and has asked me to apologise for any confusion this may

have caused.

4.  Now the housing association have gone back to the leaseholder to try and get an agreement for a deed of rectification once again, so another 10 months have been wasted. 

My questions are these:

1. Due to the incompetence of the original solicitors for the housing association, are they responsible for this delay and do i have any legal rights to claim compensation? This has wiped us out financially, with storage costs and being unable to have a place to live and so find a job in the vicinity..and this error was only spotted after 10 months - by our solicitor! Surely they have to take some responsibility? 
2. If the leaseholder refuses to agree...what happens next? Should the housing association give a deadline and then take it to a tribunal? Has anyone done this, or have any idea as to the procedure and how long it might take?  Do these things even go to a tribunal? 

Really sorry for the very long post, but nearly two years have passed now, and we have been forced to live very far from our families and stranded abroad....so we are at our wits end.  It doesn't help that it takes two months on average to get any sort of decent response form the housing association's solicitor in question...sometimes longer!!!   I have kept a record of every email and it really is quite disgusting how we have been treated. 

MickyLuvsMac

I meant to say many thanks in advance....but i posted it by mistake....ooops sorry!  

anselld

The phrase "flogging a dead horse" comes to mind.  Most buyers would have concluded a long time ago that this is not happening and it is time to look for something else.  Sorry, but there are no rights to any compensation unless/until contracts are exchanged.

eddddy

I don't think a tribunal could help with this. Maybe a court could - I don't know.

But sometimes, a short cut to resolving this type of problem might be saying to the ground floor leaseholder something like "we'll make a goodwill payment of £10k to you, if you agree to the lease rectification".


But while a private seller might agree to pay 'a sweetener' to get a sale over the line, I suspect that an HA would find it unacceptable.

I don't know if there's scope to spin it this way: You say to the HA that you want to reduce your  offer by £10k, because of the lease problems. And you agree with the downstairs leaseholder that you will pay them £10k for agreeing to the lease rectification.

But there will also be a big chunk of legal costs that somebody will need to pay.

(Obviously, any type of agreement like that would need the involvement of solicitors, to ensure it's water tight etc.)

MickyLuvsMac

anselld said:

The phrase "flogging a dead horse" comes to mind.  Most buyers would have concluded a long time ago that this is not happening and it is time to look for something else.  Sorry, but there are no rights to any compensation unless/until contracts are exchanged.

Yeah, I'd agree with you and walk away if I could afford to...as I say, all the money spent on solicitors and searches etc....and in waiting....if I walk away now there's no way I can afford a similar place in the same place....:-(  As regards compensation, the house should never have been put on the market..it wasn't read to sell....it didn't even have an up to date EPC or s sellers pack.we had to wait something like seven months for that!  We just loved the flat but I think in hindsight we should have walked!  I feel like a poker player staying at the table to play one last hand, in the hope of getting my money back!  Thanks for responding! 

MickyLuvsMac

eddddy said:

I don't think a tribunal could help with this. Maybe a court could - I don't know.

But sometimes, a short cut to resolving this type of problem might be saying to the ground floor leaseholder something like "we'll make a goodwill payment of £10k to you, if you agree to the lease rectification".

It's a good idea mate, they say they are negotiating with the leaseholder but we are in the dark as to what they are offering her etc....very frustrating...thanks for responding.

gwynlas

This person is possibly going to be your close neighbour so I think it would be in your best interests to approach them directly and ask if they believe therre is anything that you can do to help? E.g. invite the HA to pay a sweetener plus legal costs.

The issue has to be resolved for any sale to take place so after investing all you have it might as well be to you.

MickyLuvsMac

gwynlas said:

This person is possibly going to be your close neighbour so I think it would be in your best interests to approach them directly and ask if they believe therre is anything that you can do to help? E.g. invite the HA to pay a sweetener plus legal costs.

The issue has to be resolved for any sale to take place so after investing all you have it might as well be to you.

That's a very good point....about them being our close neighbour, thanks.  Mick