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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10733
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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I have POA. Mum is in a care home and her property is being

Customer Question

I have POA. Mum is in a care home and her property is being sold to fund her care home fees. The sale is going through and hope to complete in October.
There is a problem. When mum bought her home 2 years ago the previous resident did a part exchange and the mortgage company who bought the property, and whom mum bought from, put a charge on the property. This charge was never removed by mum's solicitors. Her new solicitor has asked them to get it unregistered as quickly as possible. I have also spoken to them, pointing out that when the land registry documents were sent I had phoned them querying the charge, and was told it was okay, when in fact they neglected to have this charge removed.
They sent the form DS1 off to the previous company to be signed. It has been returned unsigned and now have resubmitted it. If it doesn't get signed where does that leave mum, especially if the sale falls through, and she really needs this money for care fees. She is in a really good care home of her choice and do not want to rely on council funded accommodation, as she is happy and settled. It has been an emotional time and this hurdle is now blocking the final goal post.
If the worst case arose and the mortgage company doesn't sign the form, can the solicitors sign an indemnity to clear the charge, which is nothing to do with mum and do I have a case to sue for negligence?
Debbie Quinn
Submitted: 2 years ago.
Category: Law
Expert:  Aston Lawyer replied 2 years ago.

Hello Debbie and thanks for using Just Answer.

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

So I am 100% straight with the facts, are you sure a Mortgage Company purchased the property from the previous owner? If it was a part exchange, I could understand a Develoepr purchasing the property but not a Mortgage Company.

Could you also clarify in whose favour the Charge is registered?

I look forward to hearing from you.


Customer: replied 2 years ago.
It is a property developer. I do not have their name in front of me. I want to know if mum's previous solicitors are negligent in their duty when the charge should have been removed on exchange.
Expert:  Aston Lawyer replied 2 years ago.

Hi Debbie,

Thanks fo rclarifying matters.

On any Purchase, a Buyers Solicitor is under a duty to obtain an Undertaking from the Seller's Solicitor to confirm that any Charge registered against the property will be removed upon completion.

An Undertaking is a personal guarantee that this will be done, and if a Solicitor provides an Undertaking, he is in breach of his legal duty if he does not comply with it and furthermore, becomes personally liable to get the charge removed.

Therefore, your Mother's Solicitor was originally reliant on the Seller's Solicitor to comply with the Undertaking to discharge the Charge. Although they themselves have not therefore been negligent themselves, your Mother, as a client

is entitled to sue the Seller for breach of Contract, as the Contract will have provided that the property is sold free from any Charges. Likewise, her previous Solicitor can demand that the other Solicitor complies with his Undertaking ort he can report him to the Law Society.

You are best, ***** ***** speak to your Mother's previous Solicitor, find out exactly what the delay is, and explain that you intend to take matters further if the Charge is not removed forthwith.

I hope this helps and set sout the legal position.

KInd Regards