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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12199
Experience:  30 years as a practising solicitor.
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In 2006 I split from my partner and bought her share of the

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In 2006 I split from my partner and bought her share of the property we owned unfortunately the solicitor acting on my behalf did not complete the change of title. I only found out about this problem when a surveyor for a trust deed company came to value the house as my partner had accumulated a lot of debt and they were looking into her assets.Because the solicitor had not registered the change of title which I have paid for and hold a receipt for payment they say she is entitled to half the property. When I started looking into this it came to light that the original solicitors not only did not register change of title but have also 'lost' the minute of agreement we both signed at that time and the trustees are refusing to allow a new agreement to be drawn up. My new solicitor has advised me to take the trustees to court to have the title changed in my favour I want to know as the original solicitor was liable for the mistake should they not be persuing the trustees to have the title changed? I also have a letter dated 22 July 2011 from my mortgage holder advising me that the deeds are registered in my sole name where would they have found this information? Would the mortgage holder have any influence in the case against the solicitor as I feel I am going to out of pocket for something I had no control over? I look forward to hearing from you
Thank you for your question.
The trustee in bankruptcy is clearly taking a hard line here. You should have your solicitor break off negotiations and let them take you to court if they seek to do so. You have a good defence in that even if the title wasn't changed, there was an agreement to do so, there will be a record of the payment made to your ex and you can argue that you are the beneficial owner of the property because the payment has already been made to her and it would be manifestly inequitable if the payment had to be made by you twice.
This is a classic example of the trustee not looking further than what the title to the property says and that is really not good enough. So you should take your new solicitor's advice and raise proceedings against the trustee to deliver you a title of your ex's share of the property.
The agreement that the old solicitors have lost may have been registerd in the Books of Council and Session in Edinburgh. If so, you should be able to order an extract. If not there should be a copy or at least a draft on one or other of the two solicitors' files, your and hers.
You should not be instructing your original solicitor to do anything. They have been negligent and your new solicitor should be dealing with all of this for you, including the intimation of a claim against your old solicitor for all of your losses arising from their negligence, including your capital loss in the (unlikely) event that the trustee wins here.
Finally, I presume that your lender got the information to the effect that the deeds were registerd in your name from your old solicitor. That can be used as evidence that there was an agreement that the transfer was to take place, as of course can your offer of loan sued at the time agreeing to the transfer and also the solicitor's file of correspondence.
I hope this helps. Please leave a positive response so that I am credited for my time.
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