Would you expect to get your £3,900 back?
Discussion
Just looking for your opinion on this. Appreciate your time will try and keep it very brief.
Had a flat in Glasgow for around 10 years and sold in Apr 2016. This was a top floor duplex in a development (so has a managing agent etc).
Had been negative equity for around 8 years so was very keen to sell when the opportunity presented itself.
Accepted an asking price offer within 2 days of being on the market and purchaser was keen to get the deal done asap.
All went quickly and smoothly until I got an email from my solicitor at the 11th hour informing me that the managing agent (who are complete cowboys but that’s another story) had informed the purchaser that in their opinion, the balcony area of my property “might need” repairs within the next 2 years. Purchaser’s solicitor had subsequently recommended that purchaser did not proceed unless I supplied £3,900 to be held in purchasers solicitors account. If repairs were not required within the 2 year period from the sale date – then money would be returned to me.
[Bit of background – the balcony area had been repaired in ALL properties in the development twice, by Barratt homes, held to account under the 10 year NHBC guarantee (2006 – 2016). This was during my ownership and as far as I was concerned the issues (water ingress) had been resolved. I certainly had no further issues.]
Anyway somewhat reluctantly I agreed as I didn’t want to lose the sale at such a late stage (if so I would have lost out on fees, lots of travel to and from NI where I currently live etc).
Now the two years have passed and I have not heard anything from the solicitor I used, or the purchasers solicitor.
So my question – for anyone who knows more about solicitors than I do – is…am I right in assuming that it would have been remiss of the solicitor to approve the release of my funds for balcony repairs, without informing me at the time? (as even beyond the date of sale, the £3,900 still belongs to me?). Therefore I am expecting the funds to be returned in full.
If there is a chance that the solicitor DID release funds for balcony repairs within the 2 years after sale, then I would have expected contact, and would also expect to see invoices for the work carried out (which was for a very specific purpose), to ensure the appropriate use of funds (eg the purchaser did not just spend it on a new kitchen). (this “small print” and other fine details were not communicated at the time – it was really as basic as the bold text above)
So I suppose I am expecting 1 of 4 outcomes in order of likelihood:
1) No repairs required and refund of retention to me in full
2) Repairs carried out for less than £3,900. Solicitor should have informed me but didn’t. I want to see invoices for spending, and remainder to be refunded
3) Repairs carried out for full amount. Solicitor should have informed me but didn’t. I want to see invoices for spending
4) The money has all been spent on who knows what, and there are no invoices for anything
Interested to know what course of action you would take in either outcome 2, 3 or 4 above?
Is it likely this money is still languishing in an account somewhere?
Can I start safely window shopping the Pistonheads classifieds?
I contacted my solicitor over 2 weeks ago and he replied to say he would follow up but haven’t heard anything. I have followed up again this morning and asked if I can have the purchasers solicitors details.
Had a flat in Glasgow for around 10 years and sold in Apr 2016. This was a top floor duplex in a development (so has a managing agent etc).
Had been negative equity for around 8 years so was very keen to sell when the opportunity presented itself.
Accepted an asking price offer within 2 days of being on the market and purchaser was keen to get the deal done asap.
All went quickly and smoothly until I got an email from my solicitor at the 11th hour informing me that the managing agent (who are complete cowboys but that’s another story) had informed the purchaser that in their opinion, the balcony area of my property “might need” repairs within the next 2 years. Purchaser’s solicitor had subsequently recommended that purchaser did not proceed unless I supplied £3,900 to be held in purchasers solicitors account. If repairs were not required within the 2 year period from the sale date – then money would be returned to me.
[Bit of background – the balcony area had been repaired in ALL properties in the development twice, by Barratt homes, held to account under the 10 year NHBC guarantee (2006 – 2016). This was during my ownership and as far as I was concerned the issues (water ingress) had been resolved. I certainly had no further issues.]
Anyway somewhat reluctantly I agreed as I didn’t want to lose the sale at such a late stage (if so I would have lost out on fees, lots of travel to and from NI where I currently live etc).
Now the two years have passed and I have not heard anything from the solicitor I used, or the purchasers solicitor.
So my question – for anyone who knows more about solicitors than I do – is…am I right in assuming that it would have been remiss of the solicitor to approve the release of my funds for balcony repairs, without informing me at the time? (as even beyond the date of sale, the £3,900 still belongs to me?). Therefore I am expecting the funds to be returned in full.
If there is a chance that the solicitor DID release funds for balcony repairs within the 2 years after sale, then I would have expected contact, and would also expect to see invoices for the work carried out (which was for a very specific purpose), to ensure the appropriate use of funds (eg the purchaser did not just spend it on a new kitchen). (this “small print” and other fine details were not communicated at the time – it was really as basic as the bold text above)
So I suppose I am expecting 1 of 4 outcomes in order of likelihood:
1) No repairs required and refund of retention to me in full
2) Repairs carried out for less than £3,900. Solicitor should have informed me but didn’t. I want to see invoices for spending, and remainder to be refunded
3) Repairs carried out for full amount. Solicitor should have informed me but didn’t. I want to see invoices for spending
4) The money has all been spent on who knows what, and there are no invoices for anything
Interested to know what course of action you would take in either outcome 2, 3 or 4 above?
Is it likely this money is still languishing in an account somewhere?
Can I start safely window shopping the Pistonheads classifieds?
I contacted my solicitor over 2 weeks ago and he replied to say he would follow up but haven’t heard anything. I have followed up again this morning and asked if I can have the purchasers solicitors details.
You're going to have to wait until you get a reply from the solicitors as to where the money is & what - if anything - has happened in the intervening period. Sometimes this might need a lot of chasing to keep them focused.
I presume you have full documentation to support your account of events.
I presume you have full documentation to support your account of events.
Edited by paintman on Tuesday 24th April 09:55
paintman said:
You're going to have to wait until you get a reply from the solicitors as to where the money is & what - if anything - has happened in the intervening period. Sometimes this might need a lot of chasing to keep them focused.
I presume you have full documentation to support your account of events.
Not full documentation, but an email trail from solicitors. My confirmation and agreement to keep the money in the purchasers solicitors account, was given verbally to my solicitor. But I'm assuming he confirmed on my behalf in writing. I presume you have full documentation to support your account of events.
Edited by paintman on Tuesday 24th April 09:55
But yes it can easily be proven what the agreement was and under what circumstances the money could be released to the purchaser.
manmaths said:
Not full documentation, but an email trail from solicitors. My confirmation and agreement to keep the money in the purchasers solicitors account, was given verbally to my solicitor. But I'm assuming he confirmed on my behalf in writing.
But yes it can easily be proven what the agreement was and under what circumstances the money could be released to the purchaser.
Did you not receive a receipt via your solicitor , from the purchasers solicitor?But yes it can easily be proven what the agreement was and under what circumstances the money could be released to the purchaser.
Keep pestering the solicitor. They should have notified you of the spend and any balance should be returned to you or the full amount if nothing was spent. If the solicitor doesn't give an acceptable response within a reasonable length of time I would threaten to contact the Law Society. If they continue to be useless then I would carry out the threat. I'm sure the Law Society will be able to provide further guidance on the best way to pursue this.
Okay so I am not qualified to comment on Scottish Law.
But.
If this were a solicitor in England and Wales the least I would have expected is an email/letter with the draft rider to the contract for your approval or a full explanation of what will happen with that money. You should still have this and should check what it says.
There are to many variables and potential legal differences for me to say anything else but if I were given this question by a client and near £4k was involved I'd like to think I would be able to get back to you in less time than a few weeks, let alone leave you hanging. Your Client ledger, which should take 30seconds or less to look at for your fee earner or their secretary, should give them a massive clue as to the answer, or potential.
Regardless I would be less than happy if it has been drawn on by anyone without you bring told.
I am of course assuming that you agreed a retention, not allowance or deduction, in which case it might all be a bit sticky.
But.
If this were a solicitor in England and Wales the least I would have expected is an email/letter with the draft rider to the contract for your approval or a full explanation of what will happen with that money. You should still have this and should check what it says.
There are to many variables and potential legal differences for me to say anything else but if I were given this question by a client and near £4k was involved I'd like to think I would be able to get back to you in less time than a few weeks, let alone leave you hanging. Your Client ledger, which should take 30seconds or less to look at for your fee earner or their secretary, should give them a massive clue as to the answer, or potential.
Regardless I would be less than happy if it has been drawn on by anyone without you bring told.
I am of course assuming that you agreed a retention, not allowance or deduction, in which case it might all be a bit sticky.
Edited by Rude-boy on Tuesday 24th April 14:40
gooner1 said:
Did you not receive a receipt via your solicitor , from the purchasers solicitor?
I didn't, believe it or not! In hindsight this seems foolish but at the time I had a lot going on. Had the money not been received the sale wouldnt have gone through. I will have bank records showing the transfer to my solicitor.Bumblebee7 said:
Keep pestering the solicitor. They should have notified you of the spend and any balance should be returned to you or the full amount if nothing was spent. If the solicitor doesn't give an acceptable response within a reasonable length of time I would threaten to contact the Law Society. If they continue to be useless then I would carry out the threat. I'm sure the Law Society will be able to provide further guidance on the best way to pursue this.
Thanks for the feedback I agree with you. I got a response from my solicitor today which was along the lines of 'have chased up will let you know'.I will keep at him!
Rude-boy said:
Okay so I am not qualified to comment on Scottish Law.
But.
If this were a solicitor in England and Wales the least I would have expected is an email/letter with the draft rider to the contract for your approval or a full explanation of what will happen with that money. You should still have this and should check what it says.
There are to many variables and potential legal differences for me to say anything else but if I were given this question by a client and near £4k was involved I'd like to think I would be able to get back to you in less time than a few weeks, let alone leave you hanging. Your Client ledger, which should take 30seconds or less to look at for your fee earner or their secretary, should give them a massive clue as to the answer, or potential.
Regardless I would be less than happy if it has been drawn on by anyone without you bring told.
I am of course assuming that you agreed a retention, not allowance or deduction, in which case it might all be a bit sticky.
No at the time I did not receive any documentation setting out the details of how the money would be held / administered. As far as I can remember. Maybe I need to take a look back through my docs to make sure. Pretty sure this email was right at the 11th hour after all documentation.But.
If this were a solicitor in England and Wales the least I would have expected is an email/letter with the draft rider to the contract for your approval or a full explanation of what will happen with that money. You should still have this and should check what it says.
There are to many variables and potential legal differences for me to say anything else but if I were given this question by a client and near £4k was involved I'd like to think I would be able to get back to you in less time than a few weeks, let alone leave you hanging. Your Client ledger, which should take 30seconds or less to look at for your fee earner or their secretary, should give them a massive clue as to the answer, or potential.
Regardless I would be less than happy if it has been drawn on by anyone without you bring told.
I am of course assuming that you agreed a retention, not allowance or deduction, in which case it might all be a bit sticky.
Edited by Rude-boy on Tuesday 24th April 14:40
What do you mean retention vs allowance?
manmaths said:
What do you mean retention vs allowance?
A retention is a sum held back from the purchase price for a defined period, pending some defined event either happening or not. If it doesn't happen within the defined period, the retention should be released to the seller. An allowance is in effect an agreed discount against the purchase price to reflect (for instance) work that needs doing. It doesn't have the same conditionality as a retention.
It sounds more like the former to me but, like Rude Boy, I'm not qualified to comment on Scottish law. Unlike Ruders, I'm not even a property lawyer either!
Bumblebee7 said:
If the solicitor doesn't give an acceptable response within a reasonable length of time I would threaten to contact the Law Society. If they continue to be useless then I would carry out the threat.
A pointless and empty threat as the Law Society is the legal profession's 'trade union' - http://www.lawsociety.org.uk/Bumblebee7 said:
I'm sure the Law Society will be able to provide further guidance on the best way to pursue this.
Hopefully to tell you what you should have done from the start.Contact the SRA - https://www.sra.org.uk/home/home.page
The clue is in the name.
.
Lurking Lawyer said:
A retention is a sum held back from the purchase price for a defined period, pending some defined event either happening or not. If it doesn't happen within the defined period, the retention should be released to the seller.
An allowance is in effect an agreed discount against the purchase price to reflect (for instance) work that needs doing. It doesn't have the same conditionality as a retention.
It sounds more like the former to me but, like Rude Boy, I'm not qualified to comment on Scottish law. Unlike Ruders, I'm not even a property lawyer either!
Many thanks for your reply and the explanation. An allowance is in effect an agreed discount against the purchase price to reflect (for instance) work that needs doing. It doesn't have the same conditionality as a retention.
It sounds more like the former to me but, like Rude Boy, I'm not qualified to comment on Scottish law. Unlike Ruders, I'm not even a property lawyer either!
You are correct, it was the former - and not 10 minutes ago I received a phone call from my solicitor to confirm the retention is being returned in full.
Very happy to say the least!
manmaths said:
Lurking Lawyer said:
A retention is a sum held back from the purchase price for a defined period, pending some defined event either happening or not. If it doesn't happen within the defined period, the retention should be released to the seller.
An allowance is in effect an agreed discount against the purchase price to reflect (for instance) work that needs doing. It doesn't have the same conditionality as a retention.
It sounds more like the former to me but, like Rude Boy, I'm not qualified to comment on Scottish law. Unlike Ruders, I'm not even a property lawyer either!
Many thanks for your reply and the explanation. An allowance is in effect an agreed discount against the purchase price to reflect (for instance) work that needs doing. It doesn't have the same conditionality as a retention.
It sounds more like the former to me but, like Rude Boy, I'm not qualified to comment on Scottish law. Unlike Ruders, I'm not even a property lawyer either!
You are correct, it was the former - and not 10 minutes ago I received a phone call from my solicitor to confirm the retention is being returned in full.
Very happy to say the least!
manmaths said:
Many thanks for your reply and the explanation.
You are correct, it was the former - and not 10 minutes ago I received a phone call from my solicitor to confirm the retention is being returned in full.
Very happy to say the least!
You're very welcome! Glad to hear that it was resolved satisfactorily You are correct, it was the former - and not 10 minutes ago I received a phone call from my solicitor to confirm the retention is being returned in full.
Very happy to say the least!
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff