Negligence Stops House Sale – Need advice!!

by Readers Question

4 years ago

Negligence Stops House Sale – Need advice!!

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Negligence Stops House Sale – Need advice!!

As an interested daily reader of Property118 and seeing the professionals who utilise it, I was hoping someone could offer their opinions. Our situation is as follows: Negligence Stops House Sale

We purchased our existing home in Bristol as a new build in December 2010 from a well-known developer (the name sounds not too dissimilar to a brand of bread!). We’re currently in the process of selling and buying somewhere bigger and were due to exchange last Friday and complete today (24th October).

Last week it emerged there was still an outstanding query relating to a contaminated land assessment made at the time of the build which had to be resolved prior to our buyer’s mortgage lender releasing the purchasing funds.

Subsequent investigations have revealed that the necessary documentation was submitted by the developer to the council in January 2011. They appear to have received no response but instead of chasing decided for whatever reason to forget about it, leading to it remaining outstanding.

Unfortunately, unless this is resolved not only can we not sell our home but both the developer and potentially ourselves are open to litigation from the council for building and living in what effectively amounts to an illegal property. However, despite both developer and council acknowledging existence of this issue, neither is prepared to get it resolved – the words of a Conveyancer within the developer’s legal department were ‘as this development completed some time ago now, our planning department will probably not follow this up any further’.

I’ve looked through all the paperwork provided to us by the solicitor who acted for us in our 2010 purchase and there is absolutely no mention of this oversight or the potential consequences it could bring – if we’d known about it at the time we certainly wouldn’t have purchased it.

Discussions with a neighbour who is also trying to sell have revealed that they are having problems of their own – the developer hasn’t granted them legal access to either their own driveway or any of the shared amenities (bike shed etc.). It seems as if the developer has cut a number of corners when building these houses but doesn’t want to take any action to resolve them.

I should mention there are 16 houses on our site and so all are technically unable to sell and are open to potential legal action as it currently stands.

As of this morning our solicitor was urging the developer to get in contact with the council to get this sorted, but judging by their conduct to date I don’t hold out much hope of this happening.

Through no fault of our own and having followed all advice provided to us, we now have a house we can’t sell and could be prosecuted for owning!

Rant over!

My questions are:

• Has anybody else experienced such problems when purchasing new build properties direct from a developer/
• Should I leave this to our solicitor to sort, or should I escalate further with local MP, press etc. to highlight the conduct of the developer?
• If I do escalate and make this issue public, am I not just exposing us and our predicament to a wider audience and so increasing the chances of action being taken against us by the council?
• Should I first seek legal advice over what potential action we could face?

I know this isn’t a landlord-based issue, but any advice that can be provided would be greatly appreciated.

Thanks in advance

Samir



Comments

Mark Alexander

4 years ago

Hi Samir

Your question is very relevant to this website which is all about property, regardless of whether it is owned by an occupier or a landlord.

I have changed the proposed title of your article because negligence is exactly what you and the other 15 owners are dealing with here. It is in all of your interests to litigate against your professional advisers, the council and the developers. By putting up a united front you will massively increase your odds of resolving the problem and recovering your costs and damages.

As a regular reader of Property118 you will be aware that I am a non-exec Director in a barrister’s chambers. Accordingly, I have invited Mark Smith (Barrister-At-Law) and Head of Chambers to consider your question and to provide initial guidance.
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Sally T

4 years ago

I'm no expert, but why didn't yours and your neighbours solicitors pick these things up before you purchased the properties ?

From what I can see there is a clear case of negligence on the part of the conveyancer here, not only in respect of Samir's interests but in respect of his mortgage lender too. The security is valueless if it can never be realised. The conveyancer should have ensured all the environmental issues were resolved as between developer and Council before allowing Samir to complete, and the lender to give the advance.

Mark Alexander

4 years ago

Reply to the comment left by "Mark Smith (Barrister-At-Law)" at "25/10/2014 - 10:00":

Crikey Mark, that was quick!

I'd have thought you'd have been toasting Hovis at this time on a Saturday morning.

A little bird tells me that's what you'd really like to eat for breakfast 😉 LOL
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Samir Jones

4 years ago

Reply to the comment left by "Sally T" at "25/10/2014 - 09:29":

Hi Sally

That's just one of the many questions I and our neighbours have regarding this situation. There's no mention of any risk (potential or active) in any of the documentation provided to us during the original purchasing process.

I'm not one for conspiracy theories, but I find it more than a coincidence that the same solicitor - who was suggested by the developer - is involved in both issues. I'm sure once I speak to the other neighbours on site a similar story will emerge.

patrick maher

4 years ago

I imagine the developer suggested to every buyer that they use this solicitor. From the developer's point of view they then have a solicitor who may not want to stop a continual flow of work by looking too closely at all the paperwork. I would never advocate using the solicitor suggested by a developer. It is a clear case of conflict of interest.

Mike W

4 years ago

A problem indeed but threatening legal action at this point in time is not necessarily the way to go - yet. Let's look at it from the various parties positions. The developer and developer's solicitor are not going to want this as a big story in the press. The Council too is not going to want it there either - why did they allow building when this issue had not been resolved. Knowing how council's run a mile on this kind of issue I would start the complaints process (ultimately going to the ombudsman - you can always stop it later). In fact the council are not going to want to destroy built housing - ins't there a housing shortage?
If indeed you did use the same solicitor as the developer, and the mortgage provider did you ever receive a notice about conflict of interest?

I think contacting the council's CEO, the CEO of 'ovis a simple solution could be found. The obvious solution is the fact that the Council never rejected the paperwork in 2011 so presumably accepted it. But someone did not log it in the files?? But maybe I'm an optimist.

Mark Alexander

4 years ago

Reply to the comment left by "Mike W" at "27/10/2014 - 13:03":

A well intentioned post I'm sure but I have to disagree with most of it.

Samir, the other 15 owners and their mortgage lenders need this to be sorted ASAP and the only way to focus the minds of the parties that caused these problems is a heavyweight threat in my opinion.

It is, however, just an opinion and we are all entitled to have one.
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Samir Jones

4 years ago

Thanks for all the comments and opinions, it really is appreciated.

As an update - as of this morning, developer has emailed our solicitor saying:

"I have spoken to our Technical Director who has confirmed that the Company have complied with condition 2 and that a report was submitted to the Bristol City Council and this was all that was required of the Company in respect of Condition 2 attached herewith.

It is clear that we dealt with the Requirements in respect of Contamination and the fault seems to lie with Bristol City Council that this is coming up on the searches as a breach of Condition 2 as clearly this has been dealt with by the Company.

We do not always receive letters form the Council discharging conditions.

Our Engineer will contact the Bristol City Council on Monday to endeavour to resolve this with them to either remove the record of breach and/or supply us with a letter that this had been complied with."

I think I will wait until the morning to see if a response has been provided before determining my next action.

Mark Alexander

4 years ago

Reply to the comment left by "Samir Jones" at "27/10/2014 - 13:34":

What is the position in regards to your house sale Samir?

If the issue is sorted tomorrow is there a chance that you could still complete the sale?
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