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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I purchased a property in 2010 and I have now decided to

Resolved Question:

Hi. I purchased a property in 2010 and I have now decided to transfer my mortgage to a new provider. My current solicitors can't complete because there are 2 charges on the title deeds that need removing. These should have been removed in 2010 as they related to the previous owners of the property and the repossession of the house under their ownership.
I have gone back to my 2010 solicitors and they said 2 months ago they would rectify the problem and now they aren't returning my call or emails. I am now paying £130 a month more on my mortgage because I cannot transfer to the new mortgage providers.
I want to a) find a way to get the solicitors to do what they should have done in 2010 and b) recover the extra cost of my mortgage from them as I believe they haven't done what they were engaged to do in 2010 and it is now costing me financially.
Please can you advise what my next steps should be?
Thanks,
SC
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Have you asked the solicitors for details of their indemnity insurance policy?

Have you told them that you are now paying more on your old mortgage than on the new mortgage?

Do you know how much is needed to pay off the two charges which should have been removed

Customer: replied 1 year ago.
I haven't asked them for a copy of their policy but I will do now.
I have made it clear to them in several emails that I am now paying more and I have detailed the exact figures and suggested that I should recover the funds from them and wanted their thoughts on settling this - they haven't replied.My current solicitors said it would cost £120 gross to remove the two charges. The reason I have gone back to my original solicitors is because I don't believe I should have to pay this as they should have been removed when I bought the property. When I spoke to the purchasing solicitors they agreed with me.
Expert:  F E Smith replied 1 year ago.

The solicitor who acted when you purchased the property has been negligent.

You only have six years from when this came to your notice to bring a claim against the solicitor so the clock is ticking.

You should not have to pay this money because this should have been dealt with when you bought the property.

I suggest that you get your current solicitor to write to the earlier solicitor asking them for details of their indemnity policy or getting their agreement to remove the charges within the next 7 days or agreed to pay your current solicitors costs for doing so.

You are under a duty to mitigate your loss, and hence, for the sake of £120, you might want to simply pay your current solicitor to remove the charges and then ask the old solicitor to pay that cost and if not, sue them in the Small Claims Court.

It is going to be cheaper to pay your current solicitors costs for losing the charges than it is to pay the extra £130 per month, every month, and your old mortgage which is dearer than your new mortgage.

Ultimately, the solicitor is liable for the cost of putting the title right you will not necessarily recover the extra mortgage cost unless your solicitor has been aware of it.

Can I clarify anything further for you?

Please rate the service positive. It doesn’t cost you anything but helps me greatly.

We can still exchange emails.

Best wishes.

FES

Customer: replied 1 year ago.
I was only made aware of the error on the title deeds in May of this year so does the 6 years rule start from that date rather than 2010?
I made the solicitor aware of the additional cost of the mortgage before the first mortgage payment was made, so doesn't that give me more justification for the claim?
Expert:  F E Smith replied 1 year ago.

If the error only came to light recently, then the six years runs from date of knowledge although if the solicitor raises limitation as a defence, there would have to be a hearing to decide the limitation issue.

You needed to have made the solicitor aware now, as soon as this came to light, that the mortgage would be more expensive staying where it is which has been forced upon you by the non-removal of the charges.

You must mitigate your loss which would mean, as I mentioned previously, paying the cost of charge removal and then recouping it from the original solicitor.

Customer: replied 1 year ago.
the basic summary I am getting from all of this is that the solicitor will find some way around the claim and I have to accept their negligence and pay the costs because they are ignoring me and I'm unlikely to get anything back.
Expert:  F E Smith replied 1 year ago.

No, that’s not what I said at all.

You need to make the solicitor aware of your ongoing loss as soon as possible.

You have to mitigate that loss by resolving the issue with the charges and getting them removed if it’s only going to cost £120 because it’s cheaper than the extra payment you are making on the old mortgage compared to the new one.

Whatever it costs you, you will need to get that back from the old solicitor, by taking them to the Small Claims Court if necessary.

There is no reason why you should be out of pocket provided you get the charges removed quickly.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Ok thank you.
I have made it clear to the original solicitors how much it has cost me and I have gone to my current solicitor and asked them to check land registry to see if the changes have been made and I just haven't been told - I have also asked them to confirm the amount of £120 to clear the charges and explained I will pay this to clear the charges and then recoup the loss from the original solicitor.Thank you for your time.
SC