Why have one lawyer when three will do?

Our laywer, Fiona McNulty, explains why a solicitor who is acting for the borrower cannot also act for the guarantor of a mortgage
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Question: My son is buying a flat with a mortgage for him and his girlfriend to live in. I am guaranteeing the mortgage. My son’s solicitors says that I have to see another solicitor for the guarantee to be witnessed and that my son’s girlfriend has also to see another solicitor about a consent form. Why can’t we all see the same solicitor to save costs?

Answer: According to the Council of Mortgage Lenders’ handbook, a solicitor who is acting for the borrower cannot generally also act for the guarantor, nor for someone who is going to occupy the property who has to consent to the mortgage.

Your son’s girlfriend is not a party to the mortgage but clearly will be living in the flat and as such may have rights of occupation that could affect the lender’s rights under the mortgage.

Because of this, the mortgage lender has requested your son’s girlfriend to sign a deed or form of consent or release as a result of which she gives up all her rights of occupation.

It is extremely important that she understands exactly what it is she is signing and that no undue influence is placed on her and so it is crucial that she takes independent legal advice from a solicitor who will explain the situation to her.

You, as guarantor, should also take independent legal advice so you are fully aware of the consequences and risk of guaranteeing the mortgage, if for example, arrears build up.

Some lenders will accept written evidence that an occupier or guarantor has been advised to seek independent legal advice even though that independent advice might not have been taken, and so I suggest you ask your son’s solicitor if that applies in your particular case.

What's your problem?

If you have a question for Fiona McNulty, email legalsolutions@standard.co.uk. We regret that questions cannot be answered individually.

Fiona is a partner in the property team at Thring Townsend Lee & Pembertons Solicitors www.ttuk.com.

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