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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10494
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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I am in the process of buying a flat and selling my house.

Customer Question

I am in the process of buying a flat and selling my house. Both of these properties exchanged contracts 3 days ago and I was supposed to complete tomorrow. I had an odd voice mail from my solicitor on Friday at 5.15 pm requesting the funds for the purchase. I had told my original solicitor 5 months ago (he was taken off my case 2 months ago for 'personal reasons') that I wanted to transfer my existing mortgage to my new property; and no extra borrowing was required. I asked him what I needed to do regarding my building society and he said "dont do anything, we deal with all that". It now transpires that my current mortgage has been redeemed to finish tomorrow and I am £52,000 short for my new property for which I obviously do not have the funds. I am technically homeless tomorrow; can you please advise me?
Submitted: 2 years ago.
Category: Law
Expert:  Aston Lawyer replied 2 years ago.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

I am sorry to hear of your situation. Even though you were wishing to "keep the existing mortgage" this does entail you having to apply to your B Society for a new Mortgage on your purchase property. I can't really comment too much as to your old Solicitor saying that you didn't need to do anything- this is totally incorrect- although we Solicitors pay off a client's Mortgage on their Sale and request and obtain the clients new Mortgage monies, it is up to the client and the client alone to arrange their own Mortgage.

I am not sure whether you signed the paperwork in front of your Solicitor or whether it was all done via the post, but he should have raised your £52,000 shortfall with you at the time of signing.He should also have certainly told you that he would require your balance funds a good couple of days before completion, to avoid any last minute hitches. This would have alerted you to the fact that you needed to sort out your new Mortgage.

As it stands, you are legally obliged to vacate your property tomorrow, but of course won't be able to complete on your purchase. If you do not vacate your property, your Buyer will be able to sue you for breaching the terms of the Contract- this is likely to involve any hotel/alternative accomodation fees they incur.

As regards ***** ***** the Sellers Solcititor is likely to serve a "Notice to complete" on your Solicitor, which gives you 14 days to come up with the monies and duly complete. If you are unable to acchieve this, the Seller is entitled to rescind the Contract (make it null and void) and retain the Deposit that has already been paid by you.

From the little you have told me, I do believe your Solicitor as certainly been careless and may also have been negligent. Not only will you need to speak to your B Society asap to arrange the new Mortgage, I advise you to speak to a local independent Solicitor to see if you have grounds to sue your Solicitor for negligence.

I am sorry I couldn't be more positive in my answer, but I have had to set out the legal position to you.

If I have assisted, I would be grateful if you could rate my answer.

Kind regards

Al

Expert:  Aston Lawyer replied 2 years ago.

Hi,

Can I assist you any further?

Kind Regards

Al

Customer: replied 2 years ago.

Yes hi i also need to know this; I understand that when you have exchanged contracts that is binding legally and is a promise to buy a property. I also understand that you can be sued if you back out at this point. But in these circumstances, I am technically homeless from tomorrow and have to look for somewhere else to live. All other places have a minimum 6 months rental so if I take this and give up the flat what is my legal position? bearing in mind that none of this was my fault and I acted upon the advice of my solicitor who gave my incorrect information? My building society has informed me that it takes from 4-6 weeks to apply for another mortgage, which I am not even certain of getting. I literally have nowhere to go for that amount of time so may have to take on a long term rental and give up the flat, but dont want to make myself subject to any kind of legal claim against me

Expert:  Aston Lawyer replied 2 years ago.

Hi,

If you have no alternative but to give up the Flat, you will lose the Deposit that has been paid by you (normally 10% of the Purchase price).

The Seller could, legally, take you to Court and try and make you "perform the Contract" (ie get you to pay the full price) but this rarely happens, and is not likely once the Seller fnds out the reason why you can't complete. Normally, therefore, the Seller just retains the Deposit that you have paid and will sell the property to a third party,

I hope this clarifies the position.

Kind Regards

Al

Customer: replied 2 years ago.

Hi I have just been through my paperwork and there is no record of a deposit being made and I have not been asked for one at any point. In this case could they keep 10% of the purchase price instead if I didnt buy the flat?

Expert:  Aston Lawyer replied 2 years ago.

Hi,

Sorry for the delay.

Your Solicitor would have received a Deposit from your Buyers Solicitors (normally 10% of your Sale price) and this amount would then have been used by your Solicitor as the Deposit on your Purchase.

(However, if you are downsizing, he would only have used 10% of your Purchase price from the Deposit received on your Sale).

Hope this makes sense.

Kind Regards

Al

Customer: replied 2 years ago.

Sorry if I am being dumb! Cant work out the last sentence. My property has sold for £125,000 and the flat I am purchasing is £86,000 (the same amount as my mortgage). So what would the deposit be?

Expert:  Aston Lawyer replied 2 years ago.

Hi,

No worries.

On your Sale, your Solicitor would probably received £12,500 deposit, and £8,600 of this amount would have been used as your Deposit on your purchase.

Hope this helps.

Kind Regards

Al

Expert:  Aston Lawyer replied 2 years ago.

Hi,

Can I assist you any further?

Kind Regards

Al

Expert:  Aston Lawyer replied 2 years ago.

Hi Steph,

Can i help you any further?

Kind Regards

Al

Expert:  Aston Lawyer replied 2 years ago.
Hi,

Can I assist you any further?

Kind Regards
Al

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