Ask the right questions


A frequent ground for complaint arises when insufficient checks are made by buyers' solicitors to ensure that ground rents, service charges and other outgoings relating to leasehold purchases are paid up-to-date on completion. It is commonplace for new owners to find an unexpected demand for sums additional to those disclosed by the seller.


Standard leasehold enquiries frequently transpire not to go far enough. They appear to ask the right questions and, in addressing them, solicitors doubtless use their best endeavours to provide detailed and responsible answers. However, sometimes the answers are not full and do not reflect the true position.


It is both prudent and good practice for the buyers' solicitors to contact the managing agents for the properties directly, or to ensure the seller's solicitors do so. Solicitors will then be able to ensure that documentary evidence is available in relation to the payment of ground rents and service charges (including apportionments where appropriate). They can also confirm whether or not the freeholder or superior landlord is planning any future improvement or remedial work and can consider the benefit of negotiating a retention with landlords' solicitors to protect their clients.


In such circumstances, and if no retention can be agreed, it is essential for the client to be told at the earliest moment. Lessees can find themselves faced with a substantial bill in addition to expected annual service charges because sellers' solicitors had not been informed, by their client, that a landlord had decided, for example, to resurface a private roadway or to install a lift. Frequently, the landlord or managing agents may not yet have informed the seller of such matters, and thus he could not have reported the matter to his solicitors.


It takes little extra time to make contact with managing agents to ensure that further and detailed information is obtained, both as a form of reassurance for your client and to be certain that you have done everything that could be reasonably achieved to produce the best quality of information. It is rare that the seller's solicitors are specifically at fault when your client finds reason to complain after the event. It is frequently the case that the seller's solicitors were never told by their client that any additional expense was likely.


A solicitor's omission to seek and to clarify information freely available from managing agents may well fall within the category of professional judgement, thereby opening other possible avenues of redress. Solicitors should be aware that it is also an inadequacy of professional service in respect of which the adjudicator's compensatory and costs limitation directions are both available.



This column is written by a Law Society adjudicator



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