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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8987
Experience:  I have been practising for 30 years.
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We are downsizing to a new build we have sold and about to

Resolved Question:

Hi we are downsizing to a new build we have sold and about to exchange this week , we were supposed to exchange and complete on the new property at the same time.
Our solicitor at this stage says their is a problem with the new build lease she says it is a underlease and not a headlease as the developers say .
Communication with our solicitor is difficult she will not exchange on our purchase until the developers change the paper work which they will not .She has recieved new paper work today which is unchanged.
We feel in an impossible situation ,she will not communicate by phone with the developers solicitors she admits it is a mess but will not offer a way forward we are very stressed and going nowhere!
Thank you Susan
Submitted: 10 months ago.
Category: Law
Expert:  F E Smith replied 10 months ago.

Are you looking at exchanging and completing on the same day? That is never a good idea because these things can go pear-shaped.

Can you please explain exactly what the situation is with the lease and the head lease?

Is the whole site subject to a head lease under each of the properties then subleases?

Is that what you are asking her are you asking how to deal with your solicitor?

Customer: replied 10 months ago.
Hi No not exchanging and completing on same day, Re lease the developers have a lease dated 7th july 15 for 999yrs + 10days made berween the freeholders and developers,
The sellers solicitors have not provided our solicitor with a copy of that head apears the freeholder is one company ,and the solicitors dealing with the sale believe the developers owned the freehold title Neither party will change their stance we are in limbo.not sure about subleases We find the solicitor very unhelpfull in resolving this issue
Expert:  F E Smith replied 10 months ago.

You say that the paperwork is unchanged. What exactly is the paperwork that has been supplied and what exactly is it that your solicitor wants changing?

If the developer’s title is leasehold, that can’t be changed unless the freeholder agrees to it.

It appears that a document somewhere is called an underlease rather than a head lease but I’m not certain that is.

Customer: replied 10 months ago.
Solicitor wants paper work to say revised to a underlease, .The freeholder is a company that has granted a underlease to the developers.can any clauses or disclosure be put into the contract to allow exchange to take place ?
Expert:  F E Smith replied 10 months ago.

In fact, it doesn’t matter what the wording is, it is the form of the document not the title which is relevant. It can actually be simply called a licence and it does not alter the legal effect so if it says that its underlease but there is no head lease or it says is a head lease instead of an underlease, it actually doesn’t alter the legal effect. It’s wrong but nonetheless, the legalities of the same.

However, I’m not certain what the problem is because clearly, the freeholder owns the whole site and the freeholder has granted a lease of the whole site from which subleases of each individual property have been created.

Therefore, based upon what you have told me, what the developer has is not an underlease but a head lease. The word “head” is actually irrelevant. It is a lease. So the developer has the (head) lease and each property has an underlease or subleases (same thing).

If my understanding is correct I cannot see why your solicitor wants the developer’s title to refer to an underlease when it is not an underlease. It is your lease which is an underlease but even if it just said lease and not underlease, that would be okay also.

Have I misunderstood something?

Customer: replied 10 months ago.
The freeholder has granted an underlease to the developers for 999yrs + 10 days what kind of lease should the developer be offering us? If this issue is not resolved can we change solicitor for the purchase ?
Customer: replied 10 months ago.
No misunderstanding but what do we do . She says she will not exchange or complete
Customer: replied 10 months ago.
Can we get a new solictor at this stage ?
Expert:  F E Smith replied 10 months ago.

You can get a new solicitor at any stage you like. Before releasing the file, the original solicitor will want paying for the work they have done. A new solicitor may not take too much notice of the file and will want to start again from scratch so there is no cost saving.

However a freeholder does not grant an underlease. The freeholder grants a lease and every lease underneath that lease is an underlease. As I have said, the actual title is immaterial.

From what you have said, the freeholder has not granted an underlease it has granted a head lease of 999+10. That lease should simply be called a lease. No reference to head or under although if it does say head, it is neither here or there. From what you have said, it is most certainly not an underlease because the phrase underlease implies a superior lease and if the lease we are talking about is granted out of the freehold, then there is no superior lease.

You can change solicitors but there is no guarantee that the new solicitor is not going to have the same issue. I have known some solicitors be unnecessarily pedantic with regard to paperwork and it may be your solicitor is one of those. Please remember I have not seen the paperwork and I am only answering based upon what you have told me.

If you require a mortgage, then she is also acting for the lender. If you do not require a mortgage, you can simply tell her to complete and she will ask you to sign a document which confirms that you have ignored her advice although some solicitors will not actually do that and they will insist that you go somewhere else.

Can I clarify anything for you?

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Best wishes


F E Smith, Advocate
Category: Law
Satisfied Customers: 8987
Experience: I have been practising for 30 years.
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