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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25632
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I have just discovered, when selling my house, that the garden

Resolved Question:

I have just discovered, when selling my house, that the garden was not transferred at the time of sale, as I thought . It is still owned by the vendor of the property . They are willing to transfer the land now but have placed restrictions on it which were not there when I purchased the property.
Are they allowed to do this ?
Thanks
Rosemary
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

may I clarify please when you purchased the property roughly?

Joshua :

Did you use a solicitor for the purchase?

Joshua :

do you know how the garden was not transferred? Is it for example held under a separate title number to the house?

Customer:

Yes I used a solicitor who is no longer in business ( you can see why ! )

Customer:

House purchased in 2009

Joshua :

Thanks. Do you know when the solicitor went out of business?

Customer:

No

Joshua :

Did you buy through an estate agent? Do you still have a copy of the sales particulars? Did they make it clear that the garden was included in the sale?

Customer:

Yes, still have details . Garden obviously included in sale.

Joshua :

thank you. Finally, how urgent is this to resolve? i.e do you have a buyer that is waiting to buy or do you have a bit of time?

Customer:

Buyer waiting to buy.

Joshua :

Are they willing to accept the restrictions proposed?

Customer:

No.

Joshua :

Thanks. given that you still have clear evidence that the garden should have been included, it should be perfect be possible to resolve this matter how the difficulty is that if the previous sellers are been difficult, it is likely to take some time which may jeopardise your sale. However, if the buyers are unwilling to accept the conditions then you may consider that the sale cannot proceed in any event and if this is the case, then it may be that you have no choice to make other than to proceed to rectify the matter.

Customer:

Can't read first part of your answer. What comes before and if this is the case.?

Joshua :

the first obvious step which you may already have attempted is to contact the sellers with a copy of the sales particulars advising that you have clear evidence that the garden was included and that the sales particulars form a representation under the contract of sale under the national conditions of sale which will have been incorporated into your contract with the sale and ask them to reconsider their position failing which you would reluctantly advise them that you may have little option but to seek specific performance on their part together with costs in relation to their failure to transfer the garden. you could advise them that you are reluctant to do so because it will both cause a delay to you and expose them to both legal costs and potentially damages if you can demonstrate that you lost a buyer as a result of their unreasonable conditions but that you have little option if they sustain their position

Joshua :

Sorry would you like me to repost?

Customer:

Then they can't be forced to offer land back with same conditions they offered it for sale.

Customer:

Haven't they taken money under false pretences?

Joshua :

Based on what you say you should be able to force them to transfer the title to the garden without extra conditions. I am concerned as to whether you are able to read everything I am posting. could you kindly confirm you have been able to read everything I have posted above before I continue?

Customer:

No , afraid not.

Joshua :

with your permission, I will repost and then continue...

Joshua :

Given that you still have clear evidence that the garden should have been included, it should be perfect be possible to resolve this matter how the difficulty is that if the previous sellers are been difficult, it is likely to take some time which may jeopardise your sale.


Customer:

Yes, please.

Joshua :

However, if the buyers are unwilling to accept the conditions then you may consider that the sale cannot proceed in any event and if this is the case, then it may be that you have no choice to make other than to proceed to rectify the matter.

Joshua :

The first obvious step which you may already have attempted is to contact the sellers with a copy of the sales particulars advising that you have clear evidence that the garden was included and that the sales particulars form a representation under the contract of sale under the national conditions of sale which will have been incorporated into your contract with the sale.


Joshua :

From there you can consider asking them to reconsider their position failing which you would reluctantly advise them that you may have little option but to seek specific performance on their part together with costs in relation to their failure to transfer the garden. You could advise them that you are reluctant to do so because it will both cause a delay to you (and potential loss) and expose them to both legal costs and potentially damages if you can demonstrate that you lost a buyer as a result of their unreasonable conditions but that you have little option if they sustain their position

Joshua :

That is everything I had posted above so far. May I continue?

Joshua :

Are we alright or are you still having problems with the chat window?

Customer:

Good. Read that. What does " specific performance mean " ?

Joshua :

Thats great. I will continue from where we left off above. specific performance is a particular remedy you can seek in the courts. courts are usually in the business of awarding damages - i.e. financial compensation. however sometimes, financial compensation is not appropriate. This is particularly the case with land as land is by definition unique and therefore where damages are not appropriate, a court can order specific performance - i.e. where one party to a contract fulfils what they have agreed to rather than pay the claimant compensation.

Joshua :

accordingly, if the sellers refuse to cooperate having attempted to negotiate with them, the first step will be to obtain a copy of your conveyancing file. Because your solicitor has closed down, this is not simply a case of contacting your old solicitor. Instead you will need to contact the solicitors regulation authority to ascertain where your file has been transferred to. The SRA Maintain records of where solicitors files you have closed down have been sent. Sometimes they will be transferred to another firm and sometimes the SRA will hold the file.

Joshua :

You can find out where the file is by contacting the SRA using the following link:
http://www.sra.org.uk/consumers/problems/solicitor-closed-down.page

Joshua :

once you have the file, you will be able to examine the contractual documentation in order to demonstrate that the garden was to be included in the sale based on the evidence of the file including the sales particulars from the estate agent and on this basis, file a claim against the sellers for breach of contract in failing to transfer the garden. you may require a solicitor to assist you with this process but you should have a claim for costs against the seller on the basis you are successful.

Customer:

One important fact forgot to tell you. Solicitor who did purchase did not register correct title plan . There seem to be 2 title plans with the same number. 1 shows house without garden ( this is the i registered withLand Registry ) and i shows the house with the garden which is the 1 I saw at the time of purchase.

Joshua :

based upon what you say, there appears to be potential negligence on the part of your solicitor. The SRA may have details of run off insurance maintained by your solicitor against which you may be able to make a claim. If such insurance exists, you may wish to consider making a claim against the policy for any costs or losses you incur as a result of the negligence. However, this does not affect the above. even if your solicitor was negligence, if it is clear from the file which will include the particulars of sale from the estate agent that the garden was to be included in the sale, then you can still proceed as above against the sellers.

Joshua :

in practice, you are likely to wish to appoint a solicitor to assist you with making a claim against the sellers of this is necessary. This could be a solicitor from litigation department in the firm you are currently using for your conveyancing or somebody entirely separate. However, on the basis that you have evidence in the form of the agents particulars that the garden was to be included, notwithstanding other evidence that there is likely to be on the file, you would appear to have the makings of a good claim against the sellers for both the transfer of land and potentially costs and losses you suffer as a consequence of any unreasonable refusal on the part of the sellers to do so.

Joshua :

is there anything above I can clarify for you?

Customer:

They will transfer the land but only with the unreasonable conditions. Can refusal to remove these conditions ( our buyer will not accept them ) constitute the same claim against them ?

Joshua :

Quite so. if you can demonstrate that the land should have been included in the original sale as we discussed above, then they have no right to seek to impose additional conditions on the transfer. this would amount to a breach of contract justice would a complete refusal to transfer the land.

Joshua :

is there anything else I can help you with?

Customer:

" this would amount to a breach of contract justice would a complete refusal to transfer the land "Are there some words missing from this sentence Joshua ? I don't really understand it .

Joshua :

Sorry it is a typo - voice recognition software meltdown. My apologies. I will repost...

Joshua :

This would amount to a breach of contract just as would a complete refusal to transfer the land.

Joshua :

I hope that makes sense.

Customer:

Yes it does . Thank you so much for your good advice .

Joshua :

A pleasure. I wish you ever success in resolving the matter. If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

My solicitor only does conveyancing and was just blank when I asked if my vendors were in breach of the original contract . I can really see which direction to go in now . You have really helped me . So grateful.

Joshua :

Best wishes

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

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