Conveyancing sticking points

[Davo_123]

Hi all,

I would really appreciate some views on our situation. We're currently trying to purchase a property and seem to be getting absolutely nowhere. We're using a mortgage so need to satisfy the lender as well. Speaking to the sellers and they are very amenable to getting things sorted, however their solicitor is giving very different advice to ours. There are two key issues preventing the purchase:

1) The property was built by the seller over 10 years ago with planning permission granted. They do not have evidence of discharge of numerous planning permissions, nor outline permission. Our solicitor is insisting they apply for a certificate of lawfulness, their solicitor is advising them not to do it as they will not be able to purchase an indemnity policy later should the sale fall through. Their solicitor has told them that they will need to prove they complied with everything that was meant to be done at the time, hence they will not be able to get a certificate of lawfulness as they do not have the evidence.

2) The property is on a private water supply. The previous transfer deed (dated prior to erection of the house) stated the sellers had rights of water 'to the property' (they owned the land for some time before building the house). Our solicitor is saying that this cannot apply to the house as it wasn't even built at the date of the transfer deed, instead they want a new Easement applied for as it is an intensification of use. Again, their solicitor is instead offering an insurance policy and advising the seller they do actually have rights to the water, and in any case not to apply for the easement as they will no longer be able to insurer against it.

I feel like the sale is going to fall through as this has been going on for months now. Can anyone please advise if either our or their solicitor is being less than helpful/inflexible on the above issues?

[echat11]

Hi Dav_123

des8 MIKE770 might be able to help.

[des8]

This may seem an odd reply, but both solicitor are acting correctly on behalf of their clients.

The seller has problems in that at sometime in the past not all "i's" were dotted or "t's" crossed.
Now he can try and get these corrected, but if he fails he has a big problem, so the way the problem is surmounted is by effecting an Indemnity policy which covers future owners against future claims and costs arising.
Such a policy cannot be purchased if attempts have been made to correct the problems.

Your solicitor is acting in your best interests in that an indemnity policy is a sticking plaster, albeit a good one that is generally acceptable to purchasers.

It will be up to you ultimately to decide whether or not to proceed with the surety of an indemnity policy, or follow your solicitor's advice.

There's a more detailed explanation of the pluses and minuses here: https://www.quittance.co.uk/conveyan...ng-regulations

[Davo_123]

This may seem an odd reply, but both solicitor are acting correctly on behalf of their clients.

The seller has problems in that at sometime in the past not all "i's" were dotted or "t's" crossed.
Now he can try and get these corrected, but if he fails he has a big problem, so the way the problem is surmounted is by effecting an Indemnity policy which covers future owners against future claims and costs arising.
Such a policy cannot be purchased if attempts have been made to correct the problems.

Your solicitor is acting in your best interests in that an indemnity policy is a sticking plaster, albeit a good one that is generally acceptable to purchasers.

It will be up to you ultimately to decide whether or not to proceed with the surety of an indemnity policy, or follow your solicitor's advice.

There's a more detailed explanation of the pluses and minuses here: https://www.quittance.co.uk/conveyan...ng-regulations

Thanks Des,

More movement today and the Certificate of Lawful Development looks like the main sticking point now.

Having read the gov website you are eligible for one providing there is no outstanding enforcement action and the property has been substantially complete for four years. I don't think you need any additional evidence - is my interpretation correct? If so, why the reticence to apply for it?

[des8]

Thanks Des,

More movement today and the Certificate of Lawful Development looks like the main sticking point now.

Having read the gov website you are eligible for one providing there is no outstanding enforcement action and the property has been substantially complete for four years. I don't think you need any additional evidence - is my interpretation correct? If so, why the reticence to apply for it?

A "just in case" cautionary approach maybe?
Whilst the certificate prevents the council taking action it doesn't necessarily mean that the building complies with building regulations and is safe. There may well be parts of the construction which have not and cannot be examined as they are hidden within the building. If faults later develop because of non compliance with building regs the owner will not be able to take action against the council.
Without the indemnity policy, but with a certificate of lawfulness, if a fault develops the owner will probably be on his own.
Buyer may also have problems obtaining full buildings insurance or even a mortgage if there is no indemnity policy.

If I was intent on purchasing such a property, I would prefer an indemnity policy rather than a certificate from the council! but you should discuss this with your solicitor before deciding

[Davo_123]

A "just in case" cautionary approach maybe?

The seller's solicitor has told them they would need to provide evidence that they complied with planning at the time - this doesn't sound right by my reading of the requirements. If my above interpretation is correct then I can speak to the seller about this. Do you know if they will they need to provide evidence for the certificate?

[des8]

I don't see how the seller (who presumably was not the actual builder) could provide proof that all was done in compliance with Planning conditions and building regs unless he took detailed photos as the work progressed.

(post 5 edited & crossed with your post 6)