What is the chance of success of proving S42 Notice should have been registered by my solicitor when applying for a lease extension. Because the Notice wasn't registered the claim failed when the new freeholder stated he had no obligation to proceed. How hard is it going to be to prove that the registering of the Notice was the solicitors responsibility. Is it clear cut, or is there a chance they could argue successfully that it isn't something that is done automatically.
Hi, Thank you for your question and welcome. When you instructed the solicitor was he/she instructed to deal with the lease extension? Kind regards AJ
Hi Alex J,
Yes, I instructed the solicitor specifically to deal with the lease extension because they had already dealt with 3 others in the block, a few years before.
Hi, Thank you. If you instructed the solicitor to deal with the lease extension and the solicitor was aware that you would be using the LVT, then it has to be the solicitors responsibility to advise you of the deadlines. Otherwise the solicitor is potentially negligent.
Is the solicitor denying liability?
Do you have the retainer letter that the solicitor sent you outlining the work he would do?
I instructed the solicitor to initiate the lease extension and notices were served for my two flats. We received a counter-notice asking for a higher premium, which we agreed to. The freeholder then sold and the new freeholder initially continued discussions with us but did not sign contracts, so while it was within the 6 months period,I applied to the LVT. The new freeholder asked for the 3 month period of abeyance to sort things out. It was during this 3 months that they apparently found out the notice wasn't registered and decided they were not obligated to proceed. My solicitor has now said because there is a conflict of interest they cannot continue representing me and I should seek legal advice on this matter. The advice received is that I should seek costs because my solicitor didn't file notice. I am worried how hard it will be to prove this in court
Hi, Thank you. You will be able to prove it because it will be on your file with the solicitor as to whether the forgot to advise you of the notice or file it properly. The solicitor is right you need to get another lawyer, because if they have potentially been negligent (which they wont admit) they cannot continue to act for you.
I would recommend asking the solicitor for a copy of your file which you are entitled to and going to find another solicitor to help you write a complaint to this. It may be the original solicitor will have to make a claim on their insurance.
So do I understand that a solicitor should automatically file a notice for a lease extension to prevent this type of thing from happening.
There is also no retainer letter. The solicitor advised me of their costs by phone and there was no other correspondence .
Hi, Thank you not having a retainer and acting for you is a conduct breach. If the solicitor agreed to file the S.42 notice then they are responsible for filing it correctly and on time subject to being given instructions.
Did the solicitor set up a file in your name?
Thank you Alex, for your answers, they are helpful. What I really needed to know is, should the s42 be filed automatically by a solicitor, or , for example, do they only do it if asked. There was never any mention of the s42 notice being filed, and it was only when the new freeholder refused to complete, that I realised it should have been.
There was a file and because the solicitor thought everything was going to go ok, they also billed me for their services and took a deposit off me, some months earlier. They then withdrew and refunded the deposit when they said they couldn't deal with me because of a conflict of interest.
Thank you for your help. You have given me enough to go on and I will rate you as excellent.