Ask a Law Question, Get an Answer ASAP!
Hi, Thank you for your question and welcome. My name is ***** ***** I will assist you. Who is holding the retention sum is it a solicitor? Or the buyer personally? Were you advised by a solicitor? Did the contract stipulate any conditions about the return of the retention sum? Kind regards AJ
The retention sum is being held by my conveyancer. I have not been advised by a solicitor at this stage,my conveyancer is not a litigation solicitor. The terms of the retention were strictly related to the completion and sign off of the insurance works on the property - I agreed to this. However, the buyer is trying to make claims that areas of the property are defective - I have pointed out several times that these issues lie outside of the scope of the insurance works. Then, the buyer and his solicitor requested what amounted to a paper audit of the insurance process for the works that were done - including copies of all my receipts and invoices. I have met all their demands in this regard. However, after a delay of four weeks, the buyer has said he is not satisfied as to the validity of the sources of the paperwork - he has not been specific - but I can assure you the insurance works have been properly carried out, paid for and signed of by my insurance company - AXA - a major insurer. I provided a full account of my expenditure, and have retained original receipts - for minor items where I paid cash to an electrician or plumber I have just provided a paper sheet with the plumber/electrician name and stated "paid Cash" - anyway, these were less than £50, so they are not significant sums of money. As I state, the paperwork is genuine and in place.
Just to add that the insurance works had been commenced and underway, prior to the buyer even seeing the property and the buyer saw the works being completed on almost a daily basis, once he had made and offer to buy and subsequently completed his purchase. The insurer attended the site, was responsible for appointing the drying agents and approved one of a selection of three small local building contractors to do the stripping out and repairs and decoration works at the property. Finally, the insurer made final payment and also sent a formal letter to state the insurance works had been satisfactorily completed. So, there can be no doubt whatsoever, that the insurance company has made its final payments and has given formal notice that the insurance file is closed and it is completed to their satisfaction. Therefore, I do not see any valid grounds for the buyer to withhold the retained fees. He cannot have a right of veto on the process or make a judgement of whether he is satisfied or not - these were not the conditions of the retention of the sale proceeds. So, I need to know what actions I can now take to force him to pay over the fees.
Hi, Thank you Has your "conveyancer" given an undertaking to the buyer's solicitor?
I cannot confirm if ti was an undertaking, it was a special condition - - as stated here by my conveyancer, subject to sign off by the insurers: In relation to the retention I note that this was to be held until the works had been signed off by the insurance company and as it has in accordance with special condition 7 the retention should be released to my client.
The buyers started complaining about paint peeling from a wall in the property, which was not within the scope of the insurance works. They were claiming that it was not possible for the insurance works to be signed off by the insurance company, due to the peeling paintwork. However, my response was that: firstly, the area of the property the buyer referred to was outside the area of insured repairs and secondly, that this event happened after the completion of the works. I hope this is clear.
Hi, Thank you. ***** need to understand is the following - the insurance works have been signed off, presumably you have evidence of this? The retention is held with your conveyancer - the condition of the release of the retention was if the insurance works were signed off. Your conveyance should therefore just give you the money?
The only reason they would not is because of an undertaking?
Yes, I have shown them the document from AXA that confirms the insurance works have been signed off and the claim is complete. In good faith I also shared the works schedule with them, relating to the insurance works. Furthermore, I provided full details all all the payments and copies of all my receipts for materials purchases related to the claim, which I have retained for the insurance claim.
So, even if there is an "undertaking", the stipulated conditions of the agreement have still been met - so what is the difference? I still need to get my money.
Hi, Thank you. The problem is if the conveyancer has given the buyers converyancer an undertaking they have to be release from it. If they are not released from it they will be personally liable for it.
What you need to do is find out why the conveyancer is not releasing the deposit if you have complied with your conditions - if it is because of an undertaking you should put the buyer on notice that you will sue them and seek to recover interest and costs if they do not release the money. You should also ask why conveyancer did not negotiate an automatic mechanism for the release of the monies
the burden is on your conveyancer to release the monies and he has to explain his actions before you can take action. Kind regards AJ
Thank you this is clear to me now and I appreciate your answer. If I do have to go to through the process of threatening to sue the buyer, would I need to go to the Mercantile Court to sue - or where?
Hi, Thank you. In all likelihood it would just be a county court claim. This wont end up in court because assuming you have complied with your conditions the buyer will have no reasonable grounds for defending any claim. Kind regards AJ