Urgent help needed, any conveyancers around?

[Loobiloo1717]

I am in the process of selling my flat, and due to an incorrect lease plan have had to draw up a deed of variation.

It's all gone smoothly until now. My buyers solicitors are asking the freehold solicitors to 'provide an undertaking to deal with any requisitions arising from the land registry process', which as I understand it means they are asking the freeholders solicitors to bear the responsibility legally if there is a problem when the deed of variation is lodged with the land registry.

The freeholders solicitors are absolutely adamant that they will not provide an undertaking although they will 'use their best endeavours' to deal with any requisitions.

My buyers are threatening to flounce if not resolved quickly which will be catastrophic for my onward purchase.

My question is - would best endeavours likely be acceptable to the buyers solicitors? Or will they insist on an undertaking?

And if that is the case what on earth will I do? Could I buy an indemnity policy to protect the buyers and freeholders?

Any advice would be hugely appreciated, I feel sick with stress

:(

It might have to be your solicitor who has to provide the undertaking, not the freeholders solicitor, but in my experience "best endeavours" will not cut it. They will have to provide the undertaking otherwise your buyers solicitor will not proceed. You could ask your solicitor whether an indemnity policy will suffice but I suspect not. I am assuming that the buyer's solicitor will go ahead if they get the undertaking however, alternatively, could the Deed of Variation be registered at Land Registry before exchanging? This would mean no undertaking is needed but will of course add some time to the process.

Hi Spickle,

Thanks so much for replying.

I feared that the best endeavours wouldn't be acceptable.

Can you explain about my solicitors giving the undertaking? Could they do that? If so I would be more than happy to have them provide it at my expense. Could I suggest that, plus the indemnity payment and with the freeholders solicitors 'best endeavours' perhaps that would be enough for the buyers solicitors?

I suppose what I am afraid of is having to lodge with the land registry (which could take weeks) and losing my buyers and my onward purchase.

Thanks again for responding.

OK to try and explain, you have appointed a solicitor to act on your behalf. Therefore, your solicitor is responsible for ensuring that everything is in order, which includes liaising with the freeholder's solicitor. Your solicitor is likely to be the one who drafts the Deed of Variation which the freeholder's solicitor approves. Your solicitor then forwards this to your buyer's solicitor for their approval. They hopefully will approve it and then it will be your solicitor's responsibility to submit the Deed of Variation to Land Registry. If it is in order Land Registry will note the Deed of Variation on the title. If it is not in order then Land Registry will send a requisition stating what is wrong with it. Then it would be up to your solicitor to obtain any further information to answer the requisition. Your buyer's solicitor merely wants the Deed of Variation in place and doesn't want to deal with any problems that may occur. If the Deed of Variation is accepted before exchange then great but if not, the buyer's solicitor doesn't want to have to deal with requisitions from Land Registry post completion. In other words, you sort it out either before or after exchange but they want a promise that you'll do it and not them. "Best endeavours" isn't a promise whereas an Undertaking is. No solicitor is going to accept a "Best endeavours/try our best" response.

To be honest, if everyone is committed to the chain, then they'll be prepared to wait. If they don't want to wait then your solicitor will have to give the undertaking.

Their request is fair, and I had something similar with purchasing this house four years ago, the land deeds were wrong and needed to be amended.

It wasn't a quick process, the sellers solicitors had to do it, we then had to approve it, thr land registry solicitors had to approve it, our mortgage company had to approve it, and then it had ro be done. Sadly when they did it, and sent the updated documentation back the land registry bizzarely did it wrong, so we it had to be done again. We then had to go through the whole process again, from updating rhe new wrong to the right.

Our solicitor wrote into the exchange documentation that we would not complete until it was done, it was their responsibility and that if failed to do it within a specific period, the deal was off.

As such, I'd speak to my solicitor. I'd have assumed it was his or her job to oversee this to completion and at your expense.

Hi Spickle,

That is so helpful, many thanks. One last question if I may.

If my solicitor provides the undertaking, wouldn't he still need an undertaking from the freeholder's solicitor in order to deal with any requisitions arising? And would the freeholders solicitor give my solicitor an undertaking if he refused to do so for the buyers solicitor? If so why?

Bluntness - yes, fair request and my responsibility and I'm doing everything I can to resolve.

Loobiloo - your solicitor is acting for you in the sale of the property. Therefore it is him who gives the undertaking. I assume you have will have to pay the legal costs of the freeholder's solicitor. They act for the freeholder, not you? The only solicitor who requires the undertaking is the buyer's and he will expect it from your solicitor. Your solicitor won't give an undertaking unless he is 100% sure he can provide it, so he will make enquiries of the freeholder's solicitor to make sure all is in order.

Got it, I think. Yes my solicitor is acting for me and not the freeholder. What is troubling is that the buyers have given me 48 hours to sort it out (although maybe they're bluffing) but I don't know if my solicitor can sort out the undertaking in that time.

Oh well, just have to wait and see how he gets on.

It's a bit of a hellish process- I had no idea.

The buyers can demand all they like (through the EA or their solicitor), but the reality is it will take more than 48 hours and there is nothing anyone can do about that. Hopefully their solicitor will explain what needs to be done and why there will be a delay. They will have to take a view on whether to proceed with the purchase or drop out and try to buy something else (won't be any quicker though)

Hi Spickle, last question I hope.

We do have to register the deed with the land registry. The buyers solicitors are demanding it and I think it's probably the right thing to do. The buyers have decided to stay on board (for now) and see it through.

So my question - any idea how long it might take?

6 weeks is the current backlog with land reg. it may be quicker but they won’t guarantee it. If the freeholders solicitor is only giving best endeavours then your solicitor cannot give more than that. If there is an issue you should be questioning why this didn’t arise on your purchase

A couple of months is a guess, could be quicker or not. Japanesejazz makes a good point - why wasn't this picked up when you purchased?

I don't know, I've been thinking the same thing. I was actually thinking about enquiring / complaining to
the solicitors I used then.

Your solicitor can give an undertaking via email so it won't take long. It will be to do with money. Your buyers solicitor is probably working for a fixed fee, say £800. So if anything comes back from land registry asking for more info they will have to do more work and may not cover their costs. Your solicitor can make the undertaking it just means that if there is more work for them you may have to pay more but to be fair I work in this area and most of my applications to land registry go through with out a requisition.

Might be an idea going back to the solicitor you used at the time if there was an error

Hi nelly, I wish money was the issue but my solicitor says that the problem is that without an undertaking from the freeholders solicitors there could be issues with enquiries/ information requested. So that's why I can't pay for an indemnity policy or offer to cover costs.

What I find interesting is that the change to an internal layout of a flat a ie two bedrooms rather than one would need to go to land registry. Why would they care how the flat is laid out do you think?

By the way all you guys are so kind responding to my questions- it's been very very helpful.

Because the lease plan no longer corresponds with the floor plan. Also it’s likely that permission should have been sought from the freeholder but perhaps wasn’t. So you need a deed of variation. This needs to be registered with land registry as it is a considerable change from the original lease. You will probably get a new title number too.

So the decision is made, the deed has to be lodged with land reg prior to exchange. Bit of a nightmare as is now bumping up against my onward purchase.

Any thoughts on the timeline assuming no requisitions?

Land registry currently have a backlog of 6 weeks
Your solicitor should ask them to expedite the application as the property is subject to a sale

Thank you Japanesejazz much appreciated

Good luck with your move

Hi Loobiloo 1717

It might be a long shot posting here as it's so long ago since your thread, but we have found ourselves in a very similar position to you and would love some words of wisdom. In the process of selling our house and we have learnt that the lease extension wasn't registered 5 years ago when we purchased. We of course didn't know any different as first time buyers and are now in a terrible position through no fault of our own! The freeholder is unwilling to offer an undertaking to the buyers solicitors and we are in such a stress. Our only option left is to register with land registry ourselves but we've been told this can take up to 2 years!! This will cost us our buyer and our onwards purchase! Can you tell us how your story ended- the good, the bad and the ugly, so we can prep ourselves for what's to come?
Tia

Hello! Yes I remember this total nightmare as though it was yesterday (even though it was 6 years ago). What I did was - I offered to move out and let my buyers rent at low / no cost whilst I sorted it out. I lodged the deed of variation with the land registry and it took 6 weeks. I was just determined not to lose my buyers. Luckily our house build had been delayed so I didn’t lose my onward purchase. At one point I rang 3 x sets of solicitors every single day 🥴
my buyers were lovely though and they trusted me to get it sorted which I did.

Thanks so much for coming back to me. Glad it worked out for you in the end! 6 weeks sounds promising, but I'm terrified of the 2 years concept. I think we will have to take a leap of faith and hope for the best! Thanks again for sharing!

Well what can you do. It's awful, horribly stressful but you have to just get it done and see where you get to in the end. One thing you might want to do though is formally complain to the solicitors who advised the sale to you if this is something that should have been picked up when you bought it. We did this and got a few £k compensation.