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Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years experience.
I am sorry to read of the above. May I confirm what you and your co-owner have agreed in relation to your respective shares in the property please?
Thank you - have contacted your conveyancing solicitor yet in this regard and asked for a copy of the file? If so have they commented on the above?
Thank you. So to be clear, the TR1 copy you have obtained, has this only been signed by the seller or has your signature also been appended by your solicitor by stapling on a page from a different TR1 you signed?
Thank you. They are potentially liable to you if they were negligent for up to 15 years under the Latent Damages Act so the destruction of the file appears to be premature.
The starting point is that your solicitors may have been negligent in this matter - failure to obtain and execute instructions on joint ownership is one of the most common bases for dispute with conveyancing solicitors. you have up to 3 years to bring a claim for negligence against a solicitor from the date you were in possession of sufficient facts to enable you to determine negligence subject to an overall limit of 15 years under the above Act, so the first step may be to lodge a formal complaint with the solicitors - this gives you access to the Legal Ombudsman if they fail to resolve your complaint within 8 weeks to your satisfaction.
In terms your position with your ex partner, if you have signed the declaration of trust then your position is likely to be extremely compromised but from what you say you did not. The remaining question is therefore whether you are bound by the unsigned DoT. The answer is unhelpfully that it is unclear because there have been two different competing decisions in the High Court which have contradicted each other and to my knowledge the issue has not been decided conclusively on Appeal.
There is a succinct summary of legal position posted by a Luke Trim a barrister which will be worthwhile reading if not very satisfactory reading from your point of view.
Your ex's solicitor has an argument but it is not conclusive law and therefore is not certain to succeed in court. You will also need to keep a close eye on the 15 year timeline if you wish to potentially hold hold your solicitors accountable for any loss you suffer as a result of their potential negligence. If you go over the 3/15 years before you complain to the Legal Ombudsman or issue proceedings in court or join them in as a counter defendant you may not be able to make a recovery from them. You may need to consider legal representation in this matter as there are a number of components to juggle.
The fact that this document presumably from what you say will not be able to be produced because either it does not exist or was not signed will clearly prejudice your ex partner's case severely. Providing the above is the case then it follows that it will not be possible to determine what the terms of that declaration of trust provide and accordingly it is not possible for your ex to seek to enforce its terms. If you have read the summary of the legal position you will see that the decision in Insol was in part based on the lack of knowledge of the transferee as regards ***** ***** the alleged trust and you could deploy a similar argument here from what you say.
As regards ***** ***** solicitors I refer to are the conveyancing solicitors that dealt with the original TR1 which you say occured in 2007.
It may be difficult for them to answer any of the above without access to the file they destroyed. If you are not satisfied with their response as will undoubtedly be the case, you can refer the matter to the legal ombudsman though the extent of your losses may not be possible to quantify.
Quite so - hence my comment earlier in this thread you would need to juggle the dispute with your ex with keeping an eye on the 3/15 year limitation period.
The limitation "clock" stops running on the date you bring a complaint to the Legal Ombudsman or Court
This is an option but equally you are not yet in a position to determine your loss but the Ombudsman may be able to make a determination of negligence but put off determining damages until such damages have been determined. It would be necessary to check with the Ombudsman their operating regulations in such circumstances before you make a decision.
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It rather depends upon how much is at issue and whether your ex is prepared to consider mediation etc and if so if this is successful.
In terms of any reply to your ex's solicitor you can consider saying that her claim that the DoT is binding under LPA is incorrect because you have signed no such DoT and had no knowledge of the solicitors amending the TR1 as they did which is a matter which is subject to formal complaint in its own right. You might refer to the decision in Insol v Cowlam and observe that you do not consider her client has any substantive claim in this regard but you would consider mediation as an attempt to resolve the dispute but your ex must be realistic in her aims given the above decision or something along these lines.
I'm glad the above was of some assistance. In respect to complaints, the ombudsman is empowered to hear complaints in regards ***** ***** solicitor you have formally engaged to act for you as your solicitor in a solicitor client relationship. by contrast, it cannot typically determine complaints against a solicitor you have approached for some initial advice but whom you did not formally instruct
A pleasure. All the best