restriction on deeds

[Longboots51]

a long story cut short.
my husband bought a house 12yrs ago, which he now wants to sell. When copies of the deeds were obtained by the solicitors a restriction was noted by way of a supplemental deed. The problem we're having is that my husband was unaware of this restriction or the supplemental deed which contains it. The solicitors he used when he purchased the house were closed down by the SRA and all documents were put into intervention archives. None of my husbands paperwork was ever found including any trace of this supplemental deed. There is no copy of it at the Land Registry either. So until it can be produced (out of thin air) the solicitors acting for the sale cannot proceed as they don't know the terms contained within it. It appears that although he is sole owner, it is held in trust but we have no idea who or what or anything. He is adamant that he had never seen any extra deed.
what do we do now??

[Kantwebefriends]

When copies of the deeds were obtained by the solicitors

Can you tell us where the solicitors obtained them from?

[Longboots51]

The main deed was obtained from Land Registry. The supplemental deed was not lodged with Land Registry but was noted on the main deed.

[Clitheroekid]

Even though the Land Registry may not have a copy of the deed (though they certainly should) the names of the parties to the deed are presumably mentioned. You could therefore contact the people who were parties to the deed, who will almost certainly have a copy.

[Longboots51]

after contacting Land Registry, they have told me that they don't have to have a copy on file. And no there are no names mentioned whatsoever, only that there is a supplemental deed. If there had been names then we would have been able to contact someone. But like I said in my original post my husband was completely unaware of this being on the deeds, he has never seen or signed anything of this nature. We have done some digging over the last week and believe that the solicitors may have added this as he was a sole purchaser but, was co-habiting with someone at the time of purchase in order to register her interest in the property. We also think that the document never got sent as they were closed down only a few weeks after my husband purchased the property. The company in question was Abode solicitors ( trading as Arc property Solicitors). And as I also mentioned in my previous post no paperwork or file was ever found, the only link to the company that the SRA found was my husbands name on a database of clients.
My question was and still is, if this deed has ceased to be in existence for whatever reason ( lost, never filed properly or was never actually written) what can he do about proceeding forwards with the sale? The solicitors are adamant that they cannot do anything more without sight of this deed.

[Lootman]

after contacting Land Registry, they have told me that they don't have to have a copy on file.

They are correct. When you implement such a restriction you have the option of either filing it with the Land Registry or not. There are pros and cons of doing both but, in our case, we elected not to register.

A risk with not registering is that in theory a sale could proceed without consideration of the restriction, although in your case it is the opposite problem!

My question was and still is, if this deed has ceased to be in existence for whatever reason ( lost, never filed properly or was never actually written) what can he do about proceeding forwards with the sale? The solicitors are adamant that they cannot do anything more without sight of this deed.

It cannot ultimately be right that a reference to a document that cannot be located can prevent a sale for all of eternity.

The situation is similar to where a Will cannot be executed because there is some reference to a newer Will which cannot be found. At some point you should be able to go to court to force the sale. And after appropriate publication of that case and pending sale, and notification to all likely interested parties, if then nobody comes forward with the alleged restriction, then the court should set it aside so that a sale can proceed.

How long that might take is another matter of course.

[didds]

The solicitors are adamant that they cannot do anything more without sight of this deed.

Given there is no deed availbale not any apparent log of it actually existing, what do these solicitors propose he can try? cos it seems to me as if they are just shouting "TELL US THE PASSWORD" leaving him to just shout random words in hope he hits the unknown password!

[Clitheroekid]

If there is absolutely no trace of the deed, or any evidence as to its contents, then I would have thought that the obvious answer was an indemnity insurance policy.

This is a policy that's issued to insure against the risks of the deed ever turning up and the restriction being enforceable.

There are dozens of standard policies - every conveyancing solicitor has access to companies like this (simply an illustration, not a recommendation) - https://gcs-title.co.uk/instant-issue/policies-glance/

And this is the specific type of poilcy that's used for your situation - https://gcs-title.co.uk/instant-issue/p ... rticulars/

I'm surprised your solicitors haven't already suggested this, though perhaps there's a problem that I'm unaware of. However, it would certainly be worth asking them about this possible solution.

[Lootman]

If there is absolutely no trace of the deed, or any evidence as to its contents, then I would have thought that the obvious answer was an indemnity insurance policy.

This is a policy that's issued to insure against the risks of the deed ever turning up and the restriction being enforceable.

There are dozens of standard policies - every conveyancing solicitor has access to companies like this (simply an illustration, not a recommendation) - https://gcs-title.co.uk/instant-issue/policies-glance/

And this is the specific type of poilcy that's used for your situation - https://gcs-title.co.uk/instant-issue/p ... rticulars/

I'm surprised your solicitors haven't already suggested this, though perhaps there's a problem that I'm unaware of. However, it would certainly be worth asking them about this possible solution.

Yes, the last property I sold required the issuance of three separate indemnity policies. One was for a chancel precept, one was for some strange variance of the local building code, and I can't even recall what the third one was for.

The seller was expected to pay for them, although they were not expensive.

[Longboots51]

Thank you for your replies.
We have indeed looked at both the possibility of having it set aside or getting an indemnity insurance. My husband asked the solicitors acting for him for the sale but unfortunately they were not very forthcoming which i found strange myself. so to this end we are in the process of finding another solicitor to instruct. We will be going down the route of the insurance, if only because there is no telling how long it would take a court to get round to hearing his case as they are still quite backlogged.
once again thank you for all your help.

[Arborbridge]

Thank you for your replies.
We have indeed looked at both the possibility of having it set aside or getting an indemnity insurance. My husband asked the solicitors acting for him for the sale but unfortunately they were not very forthcoming which i found strange myself. so to this end we are in the process of finding another solicitor to instruct. We will be going down the route of the insurance, if only because there is no telling how long it would take a court to get round to hearing his case as they are still quite backlogged.
once again thank you for all your help.

I think you are taking the right course in trying to find a more knowledgeable soliicitor. As for a court case, this sounds like a long and expensive process and might end up being like Bleak House.

Let's hope insurance will do the trick.

Arb.