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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69262
Experience:  Over 5 years in practice.
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I am trying to buy a property and the previous owner defaulted

Customer Question

I am trying to buy a property and the previous owner defaulted on their mortgage. An application was made to the land registry to bypass the lease conditions as the freeholder concerned could not be traced. They said no that the bank were to serve them with a court order and get sign off inorder to transfer the property in to my name.
How long does it take to get this done once the person has be found?
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Are you buying from the owner or are you buying from the mortgagee in possession?
Customer: replied 2 years ago.
Th e Mortgage works
Expert:  Remus2004 replied 2 years ago.

As the solicitor acting on the purchase not suggested an absent landlord indemnity policy?

What is the lease condition which is required to be bypassed? Is it the landlord's consent to the transfer?

What attempts have you made to find the landlord?
Customer: replied 2 years ago.
There is a convenent that states all 3 freeholders must agree transfer.
It is a house with 3 flats. According to my solicitor with out the 3 signing off the title deed cannot be transferred.
I don't know what attempts the bank have made but I have just found her at work. She is just ignoring my messages.
I have been asked by the bank what I would pay to proceed with the sale now and I am trying to find a solution which gets me the best price.
Have you any suggestions? Is there an indemnity insurance that would cover this? Should I give an offer based on the condition that I will trace the person if they will serve her with a court action and get her signature.
Not sure which way to proceed with it?
How long does it take to get a court action to her and signed off?
Expert:  Remus2004 replied 2 years ago.

There is no indemnity policy to cover this because this is not an absent landlord. This is a landlord that is ignoring correspondence. The two things are completely different.

You are buying from a mortgagee in possession and the mortgagee in possession is not going to go to a lot of effort.

They will simply tell you that you take the property as presented and deal with everything else as it crops up. The choice is yours.

The risk therefore of taking the reluctant freeholder to court to get consent to the registration of the transfer is yours.

Bearing in mind that the reluctant freeholder must consent to the transfer it is more a matter of time than whether this will happen.

I am assuming that this is the normal situation where the freeholders are agreeing to the transfer and does not have to become party to it.

There is a risk involved however and it is unlikely that if you need a mortgage to buy the property, the solicitor will confirm that the property is suitable for the lenders purposes.

Provided you do not need a mortgage, you are faced with going ahead with the purchase and then taking legal proceedings against the reluctant freeholder.

Faced with court application and legal costs, the reluctant freeholder may decide it is easier to simply sign the relevant document.

If it does go to court and the freeholder still does not sign, the court can sign in place and award costs in your favour.

The mortgagee in possession who is selling is unlikely to accept any conditions whatsoever.

If the threat of legal proceedings does not work, it could be several months before it gets to court. Bearing in mind of course that until you own the property you cannot bring any court proceedings because you have no standing in the matter and the mortgagee in possession who does have the standing in the matter will not be interested in going to court.

Can I clarify anything for you?

Customer: replied 2 years ago.
The bank have asked me to set a condition/caveat on my offer so what I was trying to do was make my offer conditional on them taking legal action if I can find the person rather than relying on the bank to do it. I am trying to ascertain how long it takes to serve a court action on the person to the time the papers aR served and signature in place and whether this would been done at exchange and delay completion on the purchase until all signatures are in place. I have no idea how long this could take.
Or should I not exchange until it is done.
I am a cash buyer by the way.
Expert:  Remus2004 replied 2 years ago.
If this is in England, an offer is not legally binding. The situation is different in Scotland but I do not know about Scottish law.

So it does not matter what conditions you put in your offer, the seller is not bound by them.

What you could do is make a conditional exchange (not an offer) conditional upon the seller (or you) getting consent from the reluctant freeholder.

You would exchange contracts with completion being conditional upon the above. There would be a long stop date of perhaps 12 months where both of you would be waiting for that completion depending on the reluctant freeholder giving a signature.

If the Seller's solicitors are dealing with this don't expect them to move at the speed of light.

If your own solicitors are doing this you are more in control.

Regardless of the time the solicitors take to put the court action together (which itself could be a month or so) it could be several months before it gets to court quite simply because of court loading.

Hopefully, the threat of legal proceedings would persuade the reluctant landlord to put pen to paper
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69262
Experience: Over 5 years in practice.
Remus2004 and other Property Law Specialists are ready to help you
Customer: replied 2 years ago.
If i do buy what do I actually own. If I can't actually do the land transfer? I don't really understand my position ?
Is there any rule that gives me rights to transfer after a set period if I can't sort it out. Will I still be able to live in the property?
Expert:  Remus2004 replied 2 years ago.
You will own an unregistered property which means that you will not be able to sell it.
Everything can be sorted out but it may need court involvement.
What you are looking at doing is not impossible, it is just protracted and potentially difficult.
If the only problem is the reluctant freeholder then it is simply a case of making court application to complete the registration.
The unknown, at the moment, is the time that would take and the cost because it is unlikely that the seller would pay for that but the purchase price of the property would be reflective of the potential problems by faces with this property

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