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Under the terms of the Contract, a Seller warrants that the property is sold free of any Mortgage/Charge.
Therefore, I'm afraid you will need to pay back to your Conveyancer the due amount. Otherwise, you would be in breach of Contract (although this has of course been caused by your Conveyancer's error).
I would therefore suggest that you return the monies, and hope your Conveyancer is very apologetic to you!
I hope this assists and sets out the legal position.
Thank you. Although is there a legal basis that the Conveyancer can request the funds back ?
The legal basis is that a Seller is under a duty to pay off their Mortgage in full, as this is what the Contract for Sale will say.
Although I appreciate this is your Conveyancer's fault, at the end of the day, these additional monies were "never due to you" and thus need to be repaid.
Thanks for you help and I do understand however what would the conveyancers legal position be for reclaiming the funds from the seller? What legal authority can they rely on in this regard?
Thank you Alex. We are the conveyancers! Great advice thank you.