Any conveyancing solicitors out there? Need to know if IABU re. delay in exchange

[toucantoucan]

Sorry in advance for long post but I think all the details are relevant:

DH and I are selling an empty flat - 2 beds in a managed block with share of freehold (we bought the freehold a few months after buying the property 10 years ago). We received 2 asking price offers within the first week on the market, back in November. One pulled out and we went with the other one, specifying that we wanted to complete by end March.

Buyer (first time) was very slow to get organised with mortgage and solicitor but pulled her finger out in early January when we made it clear that we would go back on the market if we did not complete by end March. Surprise surprise this didn't happen and we were away for the first week of April but agreed that we would accept a little bit of slippage as long as we exchanged by tomorrow. We are incurring costs of c. £500 per month while the property remains unsold so are keen to get rid.....

It has transpired in the last couple of days that her solicitor and ours are in a bit of a stand-off in that hers says there are points she is awaiting answers on and ours says he has done everything required. We asked for a list of all her solicitor's outstanding points, of which there were 4. 3 have now been sorted but the final one relates to a Tree Preservation Order she says the search said was put in place in 1965.

I have the searches from when we purchased the property which says there are no TPOs so am unclear about this - could it be because we are also selling a share of the freehold whereas when we bought the property we were only buying the lease?

Anyway, her solicitor says she cannot exchange without a copy of the TPO and has asked my solicitor to provide it - she says she asked for this on 29th Feb. Am not sure what he said in response but the situation remains that no TPO has been obtained. Surely if her solicitor has done the search which points to a hitherto unknown TPO, it is for her to to ask the local authority for it? Or AIBU?

It is looking unlikely that we will exchange tomorrow as no-one appears to be willing to back down on this. We are therefore planning to put the property back on the market on Saturday and would expect a higher offer from a new buyer pretty quickly. This would repay some of the costs we have incurred as a result of the delays. However, I do feel sorry for the buyer as I think she has been poorly served by her solicitor and I am not entirely sure mine has been completely helpful. So, any conveyancers out there who can advise on the TPO issue and who should have pulled their finger out sooner to obtain it and MN jury, what should we do re. remarketing/hanging on in there with this buyer?

Can you ring the council and ask for confirmation that none exists?

Disclaimer: I am not a complete conveyancer but:
Check your council planning dept website as any tpos should be listed there, together with all planning. If it isn't listed I suggest calling the council and ask them to check manually - they are responsible for enforcing tpos.

Does the council have anything online relating to the TPO which might help? Can you ring them and get any more info?

I think you do need to ask your solicitor what is going on with this. I would just try and exchange as soon as you can - and do whatever is needed to get there.

I'm a trainee solicitor with a teeny bit of conveyancing experience - I can't say I'm terribly up to speed about TPOs specifically, but when things are revealed on the buyer's searches it is normal for their solicitor to request the seller's solicitor to provide a copy of it. They need their client to be completely aware of what they're agreeing to purchase and anything affecting the land. Have you asked your solicitor why she is refusing to provide it? I'm assume there must be a reason for the stand off.

I do find it odd that it wasn't revealed on your searches when you bought the property.

The problem if you pull out now is finding another buyer and starting from scratch with the whole process, which in your case has been incredibly long. You also will probably incur additional expenses for the extra time your solicitor would have to spend essentially redoing the whole transaction.

Best of luck, selling a house isn't always easy!

I can get it sorted myself via the local authority and have made a start on this but really object to having to do so and what I really want to know is which solicitor should have done it weeks ago. Also, if there really is a TPO in place, is the reason it did not show up on our search 11 years ago because we weren't at that stage buying the freehold? To be honest i can't see why a TPO is relevant to the buyer if it is a first floor flat with managed communal gardens. Even if it is relevant, why does she need to the TPO itself? I do have a tendency to throw my toys out of the pram so I sort of know IABU to go back on the market but DH feels that they have delayed enough and that if we can get a higher price that will repay the additional costs we have had, we would we daft not to do so.

Thanks Iam that would suggest my solicitor should have provided it - but to be fair he didn't have it (and I wasn't in a position to know one existed) so should he have been the one to request it from the LA?

Agree with Iamdazed, it is up to your Solicitors to provide the documentation referred to in your buyer's Solicitors Search. If you give the Council a ring they may be able to provide a copy to you, sometimes fee of charge, or there may be a small fee payable. Not sure why your Solicitors are being difficult about it.

If that is the only outstanding thing, I would stick with your existing buyer as it will be at least another 2/3 months down the line if you go with a new buyer.

Good luck.

Yes, your Solicitors should have provided the documentation and it is very easy to do. A phone call to the Council asking if they have the documentation/how much and a letter requesting and sending a cheque (if applicable).

But if the conveyancing/local search turned up a TPO the other solicitor is totally right to request th info from your solicitor IMO.

It's quite likely that as a freehold flat the TPO has a greater interest as if the tree is in managed communal gardens I assume that anything resulting from issues with the tree would be the freeholders responsibility. So for example, work to the tree would need consent, which would be more of an undertaking than if the tree was unprotected. If the tree needed to be removed, consent would need to be Granted and would prob be subject to the planting of a replacement tree and so on.

The need to see the actual TPO documentation is possibly because they need to make sure what the extent of the order is - i.e. Just one tree, a woodland group etc.

Was the TPO not something that turned up when you purchased the freehold? (I'm not sure how the leasehold/freehold transfer works in practice).

Anyway.. I think the purchaser's solicitor is in the right here reAlly and it would be a bit unfair to pull out now given that you're well on the way to selling and getting all your ducks in a row.

Oh dear ...am now turning my ire towards my solicitor. But before I go in all guns blazing, are there any rules/procedures covering this that I can cite? It does seem a bit odd that the seller's solicitor is responsible for providing documents that arise from the buyer's searches....

Yeah, if they ask for a document it's your solicitor's job to get it, not theirs. As other posters have said it would be easy to obtain but your solicitor should be doing that for you rather than you phoning the council - you're paying him to do these things! I have no idea why it's become such a problem?

It's totally normal to be asked for something like this that you don't immediately have to hand on file. I'm training in conveyancing at the moment and we often get asked for things like building regulations compliance certificates, which would show up in the same search as the one you're talking about. If our client doesn't have it we have to either find a way to get it or have our clients pay for an insurance policy for the lack of it and provide that to the other side. The buyer's solicitor has to be sure that their client knows all they need to know about the land.

I'd give your solicitor a ring and get to the bottom of what the hold up really is and why there's been a stand off, explain that you are not happy with the slow progress and want the problem resolved and contracts exchanged asap.

Good luck!

Particularly if the solicitor did ask for the TPO info at the end of Feb! It's not that there being a TPO would be a problem, but it is Ppropriate for the buyer to have all info checked by her solicitor, and that info should either have been dealt with by your solicitor or they could have asked you to sort it. Either way - the delay seems to me to be at your end.

I think the reason it's become a problem is because I am just beginning to realise my solicitor is a git..... have emailed him and got an out of office reply saying he is not there until Monday, so quite why he didn't mention this during the conversation he and I had yesterday about still managing to exchange tomorrow, I do not know....

Google "law society conveyancing protocol" OP. Most firms follow this framework, I haven't worked on a case with another firm that doesn't so far.

Part of the protocol is responding to enquiries with supporting documentation. It also talks about managing cases and communicating within reasonable timeframes!

Feel really bad now - the poor buyer must be worried sick about us snatching it away from her. Will get estate agent to reassure her tomorrow and hope the blasted TPO materialises soon. Thanks for the advice everyone.

On the bright side, you're nearly there. The sooner you can get to completion the sooner you need never have anything to do with your solicitor ever again!

I'd still ring them tomorrow if I were you, if he mentioned exchanging tomorrow he may well have left his files to be looked after by a colleague who might be able to shed some light.

I'm glad you at least don't feel fuming at the buyer now!