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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 71031
Experience:  Over 5 years in practice.
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I bought a garden flat recently. I applied to the freeholder

Customer Question

I bought a garden flat recently. I applied to the freeholder for permission to build a small extension within the boundary of my garden. They told me I don't own the garden, they do, and would I like to apply to buy it? The estate agent info clearly stated this was a garden flat and what would become "my" garden was clearly defined with a new fence. The vendor also made clear he was selling a garden flat and the price represented this. I now have a copy of the lease and it is clear in words and the layout of boundaries that the vendor did not buy a garden flat, therefore he didn't own it to sell.
What I want to know is, was it the responsibility of my conveyancing solicitor to read the lease and spot this huge discrepancy? Or was it the estate agent? Or both? Am I in a position to seek redress from my solicitor, the vendor, the estate agent or all three? It is clear the vendor's conveyancing solicitor also did not spot the problem. Would I need to sue them?
Thank you for your help. Melody Weig
Submitted: 3 years ago.
Category: Property Law
Expert:  Remus2004 replied 3 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
What do the deeds say on the point?
Customer: replied 3 years ago.

I have a lease, not deeds. The lease says "ground floor flat on part of the ground floor of the building shown edged red on the plan" and the red area is only my flat. The whole of the garden area is edged in green and deemed communal area.

Expert:  Remus2004 replied 3 years ago.

Lease/deeds, the words are used interchangeably in this case, but that answers my question, you have the lease.

It is the solicitors responsibility to check the property to see that the extent of it is what you are buying. What he would normally do (and should do) is send you a copy of the plan and the lease that goes with it and ask you to confirm that it reflects the area that you are buying the lease of.

If he didn’t do that then you have a claim to make to the Legal Ombudsman because the solicitors service has been substandard. You also have a claim to make against the solicitors insurance policy in negligence.

You have no claim to make against the selling agent because the document which is relevant is the contract and the agent’s particulars will be clear that they do not represent any kind of offer and should not be relied on and the buyer should rely on their own enquiries with regard to the property. It comes down fairly and squarely your solicitor to check everything surrounding the property and to report back to you accordingly.

You can not can rely on the words “garden flat” as any kind of description to say that the garden was included. It may be that the seller confirmed to your solicitor that the garden was included but did that incorrectly. That is the case then you have substantial claim to make against the seller.

I suggest that you see a solicitor to obtain the original file (not a copy) so that you can ascertain exactly what the solicitor looked at and what documentation he was provided with and what enquiries. Only then, will you know the way forward.

Can I clarify anything for you?

Customer: replied 3 years ago.

Thank you, ***** ***** what I needed to know. I called Legal Ombudsman but they said they couldn't answer my question. I have initiated a complaint through them and will follow up with the Solicitors Regulation Authority.

Expert:  Remus2004 replied 3 years ago.

Correct. They will not answer questions (nor will the Law Society nor the Solicitors Regulation Authority and nor will a court) but the Legal Ombudsman will deal with the complaint. They also will not deal with complaints generally over the telephone so you must put it down in writing.

There is a crossover between lack of service and negligence. A lack of service can generally deal to negligence but the Ombudsman will only deal with lack of service and not allegations of negligence. It’s a fine line and sometimes there is no difference but at least you know.

Before doing anything, get the solicitors original file. I’ve already said, do not accept a copy. The solicitor must let you have the file. Don’t let him charge you for copying because if he wants a copy for his own records, that is his cost. If he will not release it to you without you paying a copy charge, that is a further complaint. He is entitled to charge you the cost of sending it to you.