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Buachaill, Barrister
Category: Law
Satisfied Customers: 10984
Experience:  Barrister 17 years experience
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I am in the process of purchasing a residential property, which

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I am in the process of purchasing a residential property, which I bought through auction. Since the auction & exchange of contracts the vendors solicitors have attempted to introduce a service charge & restrictive covenant on the title preventing sale of the property without certification from themselves, for the maintenance of a small square of grass across the footpath from the property. The footpath & roads are maintained at the public expense & no rights have been in the contract for the use of this land. My solicitors have advised me that this constitutes a breach of contract by the vendor. I have agreed that i will pay the service charge but will not accept the restrictive covenant relating to it. None of this was disclosed in the auction contracts & the vendors solicitors are attempting are attempting to justify their position on the grounds of a general condition requiring payment of all outgoings & other liabilities - despite this being a liability that they are creating after the exchange of contracts. They additionally say that their clients will not concede on the requirement to put a restrictive covenant in the title despite never having mentioned it in the special conditions or extra special conditions. Is my solicitor correct in that the vendor's are in breach of contract?
1. Your solicitors are most certainly correct that this is a breach of contract to suddenly introduce a requirement to insert a restrictive covenant at the last minute, after auction, into the contract. This is high-handed behaviour. Instead, you should do as your solicitors seek to do - serve a notice to complete and then sue for specific performance of the auction contract. You need to realise that you are in the right here and you should move forward and seek specific performance of the original contract as disclosed prior to auction. This is because you will get your Order for specific performance as your solicitor's suggests. So move forward and dispense with this (fraudulent) practice of seeking a last minute restrictive covenant and get the sale done on the terms agreed, as the law will give you this. So, I would suggest that rather than second-guessing your solicitors, you rely upon their advice and realise you are in the right here! Stand your ground!
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Customer: replied 2 years ago.
Many thanks for your advice. I am always concerned when we rely upon interpretation of the law which is why I was prepared to concede on the service charge but not the restrictive covenant.
3. I understand your predicament. One always wants to know one's options when there is the possibility of conflict erupting. However, you should rest assured your position is strong here.
Customer: replied 2 years ago.
Many thanks. I always thought that purchases at auction & the contracts being available prior made the whole process straightforward. On this occasion it is anything but.
4. You have to realise that this is because of who you dealing with on the sale side. These people are anything but straightforward!
Customer: replied 2 years ago.
The vendor is a housing association, their solicitors are large practice in Birmingham, I think because my solicitors are locally based vendor's feel that they have the upper hand & can dictate terms.
5. I am surprised at a housing association behaving in this way. It could be the legal advice they are getting. You never know!
Customer: replied 2 years ago.
I think it was omitted from the paperwork prior to auction by accident, as I have said I don't object to paying the service charge, but I do object to the restriction on title & this is the point on which they will not concede. Had the restriction been declared prior to auction I wouldn't have bid on the property, & at no point have the vendor's solicitors indicated anywhere in the agreement or conditions where a clause allows them to insert a restriction.
6. If someone made a mistake, then there is a potential negligence action on the other side, whether this is the solicitors' fault or, the Housing Association's fault. So someone is not wanting to accept responsibility.
Customer: replied 2 years ago.
Many thanks for your advice. Hopefully it will all get sorted out.
7. Best wishes, Hope you get it sorted out.
Customer: replied 2 years ago.
Further to our previous messages. The other party are now attempting to say that the notice to complete issued by my solicitors is not correct, & that they will therefore issue a notice to complete. The contract does not stipulate any specific form which the notice to complete must contain. I'm assuming that the vendor's solicitors are attempting to do this to attempt to seize my deposit on the property. We have attempted to reach a compromise, but the vendor's will not move on insisting on introducing a restriction into the title. No restriction was referred to, or is allowed for, in the contract. My solicitors are advising that even though I am in the right, fighting in the small claims court to regain my deposit will be expensive, & it seems grossly unfair that although I am in the right I could be £2,000 to £3,000 out of pocket as advised by my solicitors.