Question: I made an offer last July on a property I want to live in. It was being let to someone. We still haven't exchanged contracts but the survey and all the searches have been done and I told my solicitor about the tenant when he asked me for the deposit.
Now I am at the end of my tether because the tenant is refusing to leave, my mortgage offer is about to run out and I have had all these costs. My solicitors and the agent have been useless. What can I do?
Answer: Your solicitors should have asked you whether the property was occupied when they first took instructions from you. However, when they received the contract papers from the seller's solicitors they should have checked carefully to see if it was being sold with vacant possession.
There are two places in the contract where this is covered. Firstly, there is a special condition dealing with occupation which should specify either that the property is being sold with vacant possession or that it is subject to a tenancy, in which case a copy of the tenancy agreement should be annexed to the contract.
There is also an enquiry about occupiers in the property information form that the seller completes as part of the contract bundle. Full details should be given in reply to this question. If the contract and the form disclosed an occupier/tenant, your solicitors should have checked the tenancy terms and ensured notice to quit had been given. Your solicitors must now establish from the seller's solicitors whether the tenant has had the required notice to quit. If the tenant ignores the notice, the seller will have to take court action against them, which could be a long process.
You may wish to withdraw from the purchase and look into whether your solicitors dealt with the tenancy correctly, if its existence was indeed disclosed in the contract papers.
WHAT'S YOUR PROBLEM?
If you have a question for Fiona McNulty, please email email@example.com or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE.
We regret that questions cannot be answered individually but we will try to feature them here. Fiona McNulty is a partner in the residential property, farms and estates team at Withy King LLP (withyking.co.uk).