My solicitor has let me down – what do I do now?

My solicitor has let me down – what do I do now?

10:17 AM, 7th May 2014, About 7 years ago 25

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My solicitor has let me down

After months of searching, we finally found a property deal which was exactly what we had been looking for and at £50,000 below the asking price as long as we exchanged within 28 days from our solicitor receiving the contract.

The time frame was clearly set out in the agreement sent and I also stressed the important time frame condition on instruction of my solicitor. As the deadline was drawing near, I was chasing everyone to try to get things in place, but the searches hadn’t come back and neither had the survey so the solicitor was loath to do the exchange.

All directors held a telephone meeting to discuss this situation and decided that we still wished to go ahead with the exchange without these things in place, but when I discussed this with the solicitor she said couldn’t and then in an email said……

“In view of us still awaiting the results of your local water/drainage and environmental searches, we are unlikely to be able to exchange contracts tomorrow. As I act on behalf of your lender, I am under a duty to ensure that the property provides secure borrowing which is only ascertained from clear search results. I am therefore going to write to your seller to update them of the position. I will also indicate that this delay is not indicative of your willingness to proceed and that you remain extremely keen to purchase the property”

6 days after the deadline I sent an email to the solicitor saying “…..so can we at least do the exchange before it all comes back?”

7 days after the expired deadline I was made aware that the sellers had received a higher offer, and have now pleaded with our solicitor to exchange so I wrote to my solicitor to say “….so can we now proceed to exchange please?”

5 days after this, she tells me sorry but they have just been made aware by the other side that we are now in a contract race. Two hours later we were informed that the property had been sold to the other buyers!

I am now being told that the other side didn’t adhere to the correct protocol and I hadn’t made my intentions clear that I wanted to exchange without everything in place. I know I had detailed conversations with her and gave all my reasons why we were happy to go ahead.

So where does this leave me now? Do I just pay up and walk away? The income would have been £2,400 per month with a repayment mortgage payment of £900 to come out of it.

Many thanks

Linda



Comments

by Mark Alexander

10:21 AM, 7th May 2014, About 7 years ago

Hi Linda

A Direct Access Barrister called Mark Smith regularly visits this website, hopefully he will spot this article and comment.

I am not legally qualified so am unable to comment on whether your solicitor has been negligent or not.

If you would like to contact Mark Smith directly (he does offer a 15 minute free telephone consultation) please see his member profile for his contact details >>> http://www.property118.com/member/?id=1945
.

by Mark Smith (Barrister-At-Law)

10:24 AM, 7th May 2014, About 7 years ago

One initial comment is that the solicitor had a conflict of interest, which became evident when the lender's interests were in conflict with yours.

I also wonder how the second buyers were able to overtake you in the contract race.

by Linda Price

10:26 AM, 7th May 2014, About 7 years ago

Thank you for such a prompt response - I wasn't even expecting to see the post for a few days 🙂

by Steve From Leicester

10:55 AM, 7th May 2014, About 7 years ago

A lawyer will give a professional opinion. But my (unprofessional) opinion, based on what you have written is that you haven't got a claim against the solicitor.

If the solicitor had exchanged you would have been legally committed to the purchase. However the mortgage lender had made it clear they wouldn't release the funds unless the searches were OK.

So if the searches turned up something nasty you would have been in a position where you were legally committed to buying the property but had no funds to do so. The solicitor's duty of care meant he or she couldn't risk putting you in that position (even though you were prepared to take the risk).

By allowing you to exchange the solicitor might also have left themselves open to a claim from the seller because he or she knew you hadn't got the funds in place to complete.

by Mark Smith (Barrister-At-Law)

11:06 AM, 7th May 2014, About 7 years ago

Steve is quite correct in terms of the duties on the solicitor.

I would comment however that
1. the searches should only take a week or so
2. time was 'of the essence' in this deal
2. there is still the issue of conflict, which should have been explained at the outset and kept under constant review by the solicitor

by Ian Narbeth

11:59 AM, 7th May 2014, About 7 years ago

I am not sure I agree with Mark. The precise facts may change my view but until the lender is asked to forward funds the absence of searches and survey is not an issue and I do not see a conflict of interest. The solicitor would have had to warn you in the strongest terms that you were taking a risk and as Steve from Leicester says if the survey or searches revealed adverse matters the lender might not have lent. From your statement:

"I am now being told that the other side didn’t adhere to the correct protocol and I hadn’t made my intentions clear that I wanted to exchange without everything in place. I know I had detailed conversations with her and gave all my reasons why we were happy to go ahead."

it appears the solicitor thought she was not instructed to exchange. Perhaps your asking: "Can we exchange?" instead of "Please exchange now and I will accept the risk." was misinterpreted as "Can we safely exchange?" to which the prudent solicitor's answer is "No". Most conveyancing solicitors are dealing with home buyers for whom the purchase is the biggest financial commitment they ever make. Some of them need to be protected from themselves. Steve is not right that the solicitor could not have exchnaged. She could but only after sounding the warning and getting written instructions from you.

by Mark Alexander

12:19 PM, 7th May 2014, About 7 years ago

Reply to the comment left by "Mark Smith (Barrister-At-Law)" at "07/05/2014 - 11:06":

Interesting response Mark, based on what we know (and without commitment) do you think Linda may have a case for a professional negligence claim here? If so, how might that work, from a financial perspective, if she was to instruct you to act as her Direct Access Barrister to make such a claim?
.

by Linda Price

12:49 PM, 7th May 2014, About 7 years ago

Thank you for all your comments to date.

The property was purchased 18 months ago by the seller, we reasoned that if anything untoward was in there, their solicitor would not have let them go ahead. Also, we live in the close vicinity and would have been aware if anything major was planned for the area.

My bank manager also made the comment that we would need sight of the searches and valuations at draw down not exchange.

I had told the solicitor just before the exchange date that we had taken the decision to exchange regardless and if the bank weren't ready my precise words were " there's enough in the deal to pay the cost of a bridging loan" but as it happens the bank would have been ready and my bank manager emailed to give that reassurance.

The other party got the deal because they took exactly the same view as us about the searches and exchanged within 2 hrs of getting a contract.

by Romain Garcin

12:57 PM, 7th May 2014, About 7 years ago

As already hinted, it seems rather unusual that the searches took so long.
From what Linda wrote, it looks like the solicitor has more than one month to have them done.

by Sally T

20:58 PM, 7th May 2014, About 7 years ago

Can't help thinking you'd be singing a different tune if you had of exchanged then the mortgage fell through. You'd now be saying 'can I sue my solicitor for letting me loose my deposit, he shouldn't of let me exchange'.
I totally agree with your solicitor, he's done his job correctly.
Am I reading correct that the survey hadn't come back, what would you of done if they'd undervalued it ???

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