solicitors can't agree - what do we do??

[Evecob]

Hi, I've posted numerous times on here recently so some might remember the problem, but we seem to have a stalemate with solicitors and we are going in circles and don't know what else to do!

We should have been completing tomorrow 28th May. Sellers solicitor told us this was doable last month, so chain agreed, everything is done, however our solicitor wasn't happy with one last enquiry - the rent charges on the house we are buying (built 2018). No management company was set up, and no charges have ever been sought. The builder has been contacted and he is not going to be charging the residents there and he is happy for the rent charges to come off title.
Our solicitor says the rent charges need to be removed from the title in order to progress. Sellers solicitor doesn't see a problem with the way things are. To our frustration it has taken 2 weeks for my solicitor to discuss this issue with his colleagues and ask our sellers solicitor to either create a deed of variance or fill in an RX2 form to remove the restrictions from the title.

Sellers solicitor says no to a deed of variance as the road (to be maintained hence the service charges) isn't changing. He also says no to the RX2 form as there are no restrictions to remove???
He offers no solution, just keeps rejecting ideas, it's like he doesn't want to sell the house. We are at our wits end, we have been spending most of our days the past 2 weeks calling, on hold, emailing trying to get steps taken to move forward but nothing is working.

After our EA chased this, the sellers solicitor is waiting to hear from our solicitor but I am at a loss on what can be done to move forward on this. We just want to exchange and move in to our house...

What can we do with this stalemate? Is one of the solicitors definitely in the wrong here? Do we ask to speak to someone higher up to help? We are so tired and need this sorted, we do not want to pull out.

I'm not an expert in any relevant field. But I'd be expecting the EA to be working to unblock this. What is the sellers view? Do they know this is what's holding up the sale? Are they in any hurry to move? Are there other links to the chain that are being held up?

@Gazelda

I'm not an expert in any relevant field. But I'd be expecting the EA to be working to unblock this. What is the sellers view? Do they know this is what's holding up the sale? Are they in any hurry to move? Are there other links to the chain that are being held up?

Hi, the seller is as frustrated as I am, we both call each other about 4 times a day right now discussing this and trying to contact our solicitors for updates.

He has spoken to the EA and asked if she can just tell his solicitor to sign the RX2 form so we can move forward. She said she will try....We are both utterly fed up.

No other hold ups in the chain as far as I am aware. Our buyer is ready and waiting. Then there's us, our seller, our sellers seller, and her new build.

Sounds like the seller's solicitor is in the wrong here but difficult to say without seeing the title/document. The rent charge deed should be changed to remove the rent charge from the deed - so it is a contractual obligation only.

Well, the seller is paying his solicitor so he needs to ring them and tell them to resolve it one way or the other.

The thing to remember is that you are the client, and your solicitor should do what you instruct them to do, and the seller’s solicitor should do what the seller instructs them to do.

You and the seller need to agree what you want to achieve, and tell the solicitors to get their fingers out and do it!

@BadgertheBodger

Well, the seller is paying his solicitor so he needs to ring them and tell them to resolve it one way or the other.

He has countless times, all he gets back is hes waiting to hear from my solicitor... then my solicitor proposes something and he doesnt agree...its so frustrating.

Can you get everyone on a call? If you and seller agree the approach, then you can tell your solicitors and listen whilst they work out who does what and how (and when!). Ultimately you are the client and provided you're asking for a normal thing to be done it shouldn't be held up by a solicitor. This might uncover that the seller isn't being as clear cut of course.... Is there any chance they are in fact stalling?

Or is it maybe a costs issue for the seller that you could resolve by paying your solicitors to draft the form?

If you're getting a mortgage then your Solicitor is acting on behalf of your lender also. Therefore the title and paperwork must be correct to ensure your lenders have good security on the property. If your Solicitor is not satisfied with the seller's Solicitor's view on the issue, then your Solicitor will need to disclose this to your lender. Your Solicitor has to sign a Certificate of Title for your lender when requesting your mortgage money and cannot sign this off if there is an issue with the title. Good luck!

Your solicitor sounds like they are trying to advise you. What is the risk to you if that section is not removed?

It sounds like the vendor's solicitor is the issue?

They need to get on a call together, can you have the estate agent arrange it, if they want the sale to go through?

Hi Evecob, I am not a solicitor but here are my thoughts:

A seller's solicitor is always agreeable to get to exchange without sorting out issues - if a buyer's solicitor allows it! It is up to the buyer's solicitor to do the due diligence on the purchase, after all if they don't do it correctly, you will be knocking on their door in a few years wanting to know why they allowed you to proceed without explaining what you were getting into.

Your solicitor is on your side and is acting in your best interests. Sorry to say, but you were never in a position to complete today while this enquiry was outstanding.

If you are buying a property on which there is an estate rent charge you should take the advice of your solicitor, as it can affect the value and marketability of the property.

An estate rent charge is usually registered against a property as a way of ensuring that property owners observe a positive obligation related to their property ownership.

For example, an obligation to pay towards the costs of the maintenance and repair of the communal areas on a housing estate could be secured by an estate rent charge.

The problem with estate rent charges for property owners is that there is no procedure for challenging the sums requested under a rent charge, other than through the court.

In addition, the owner of the rent charge, i.e. the person with the benefit of it, can take possession of the property in the event that any sums due under the estate rent charge remain unpaid for 40 days.

This means that lenders may not be willing to lend on a property with an estate rent charge, because of the risk that the rent charge owner takes possession of the property if the borrower does not pay the estate rent charge. If this happens, the lender's security would be compromised.

Your solicitor needs to find out if there is any way to vary the estate rent charge to make it more acceptable to lenders.

An alternative way of ensuring that the obligation to pay towards any communal costs is secured is requiring property owners to enter into a Deed of Covenant, where they covenant to pay the charges due and future owners can be compelled to enter into similar deeds by entering a restriction at the land registry.

I am not sure whether modern Estate Rent Charges can be removed from the title, though I believe older rent charges (before 1977) will be "redeemed" in 2037, but this does not apply to Estate Rent Charges that are more recent.

You state that there is no restriction on your title, but is there something on the title regarding the rent charge? If so, could you quote the exact wording? If there is nothing on the title regarding the rent charge, how does your solicitor know about it?

If the rent charge cannot be removed, then a Deed of Covenant might be the way to go.

Sorry, I can't be of any further help, just to say that, although it must be so frustrating for you, it is of the utmost important that this is sorted out to your solicitor's satisfaction. You do not want to have problems regarding this when you come to sell in the future.

@MyHusbandisRonWeasley

If you're getting a mortgage then your Solicitor is acting on behalf of your lender also. Therefore the title and paperwork must be correct to ensure your lenders have good security on the property. If your Solicitor is not satisfied with the seller's Solicitor's view on the issue, then your Solicitor will need to disclose this to your lender. Your Solicitor has to sign a Certificate of Title for your lender when requesting your mortgage money and cannot sign this off if there is an issue with the title. Good luck!

Yes this makes sense.

Our solicitor is now suggesting our sellers solicitor if an "ammended transfer can be registered with the rent charge clauses removed to replace the current transfer in the title"

Is this do-able? We have not heard anything since this..

@Spickle

Hi Evecob, I am not a solicitor but here are my thoughts:

A seller's solicitor is always agreeable to get to exchange without sorting out issues - if a buyer's solicitor allows it! It is up to the buyer's solicitor to do the due diligence on the purchase, after all if they don't do it correctly, you will be knocking on their door in a few years wanting to know why they allowed you to proceed without explaining what you were getting into.

Your solicitor is on your side and is acting in your best interests. Sorry to say, but you were never in a position to complete today while this enquiry was outstanding.

If you are buying a property on which there is an estate rent charge you should take the advice of your solicitor, as it can affect the value and marketability of the property.

An estate rent charge is usually registered against a property as a way of ensuring that property owners observe a positive obligation related to their property ownership.

For example, an obligation to pay towards the costs of the maintenance and repair of the communal areas on a housing estate could be secured by an estate rent charge.

The problem with estate rent charges for property owners is that there is no procedure for challenging the sums requested under a rent charge, other than through the court.

In addition, the owner of the rent charge, i.e. the person with the benefit of it, can take possession of the property in the event that any sums due under the estate rent charge remain unpaid for 40 days.

This means that lenders may not be willing to lend on a property with an estate rent charge, because of the risk that the rent charge owner takes possession of the property if the borrower does not pay the estate rent charge. If this happens, the lender's security would be compromised.

Your solicitor needs to find out if there is any way to vary the estate rent charge to make it more acceptable to lenders.

An alternative way of ensuring that the obligation to pay towards any communal costs is secured is requiring property owners to enter into a Deed of Covenant, where they covenant to pay the charges due and future owners can be compelled to enter into similar deeds by entering a restriction at the land registry.

I am not sure whether modern Estate Rent Charges can be removed from the title, though I believe older rent charges (before 1977) will be "redeemed" in 2037, but this does not apply to Estate Rent Charges that are more recent.

You state that there is no restriction on your title, but is there something on the title regarding the rent charge? If so, could you quote the exact wording? If there is nothing on the title regarding the rent charge, how does your solicitor know about it?

If the rent charge cannot be removed, then a Deed of Covenant might be the way to go.

Sorry, I can't be of any further help, just to say that, although it must be so frustrating for you, it is of the utmost important that this is sorted out to your solicitor's satisfaction. You do not want to have problems regarding this when you come to sell in the future.

Thanks for your detailed reply.. it also makes a lot of sense thanks.

We are hoping our solicitors new request will be agreeable for our sellers solicitor....