Deed of Conditions

[Curtis]

Hi folks,

 

Looking for some advice, i appreciate you guys are not solicitors but i wondered if anyone else had experienced this issue or had any advice.

 

I'm in the process of buying a piece of land (Scotland) which i was hoping to have completed by now but it seems like my solicitor and the selling solicitor have been butting heads for weeks on who is responsible for drafting a Deed of Conditions. 

 

To give some context the slice of land i am buying is part of a big area of land where all the plots for sale (3 plots) have their legal right of access via plot 1 , they do not individually have their own legal access although in reality they all have physical access points they're just not legal ones. 

 

So my solicitor has asked the selling solicitor to draft a Deed of Conditions relating to all the plots covering the right of access via plot 1 to legally cover ourselves in case we're ever refused legal right of access direct to our property (plot 2) via the actual physical access that we use.

 

For the last few weeks our solicitors have been going back and forward arguing about who is responsible for drafting the document.

 

Our solicitor says "The Deed of Conditions specifies the title conditions and rights that should affect the entire area consisting of all the plots therefore it is the sellers responsibility to draft the document to ensure that all the plots contain identical rights and title conditions."

 

The selling solicitor says "I disagree with you on this. As you are acting for the purchasers, please go ahead and draft the Deed of Conditions, and I will revise it."

 

I think my solicitor is right but i wondered if anyone has been in a similar position and has any advice?

 

Ta

 

 

 

 

 

 

 

[Ferdinand]

Are both parties committed to the sale? Does it have PP?

 

What will your solicitor charge to draft it?

 

If it is a reasonably small amount then get it drafted and make your formal offer conditional on it.

 

Dependent on how hot the market is for this plot, reduce your formal offer by a suitable amount.

 

If you have it drafted, it avoids any need for you to waste time quibbling about specifics you disagree with.

 

I had my solicitor draft a clause of easement, they didn't question the wording, so I now have an easement with the widest definition of "services" I have ever seen. I could dig a tunnel to import elephants if I had a decent reason for needing them.

 

The only risk as I see it is either them stealing your wording for the other plots or if your sale falls through. If a sale is agreed I think they would rather have your xxx k rather than kill the sale for the small amount. 

Assuming they *want* to sell it.

 

Where is the downside of your solicitor doing it?

 

The answer to "cui bono?" is most probably you.

 

F

 

[Temp]

I would expect the seller to do this normally. Not least so that all three plots have the same rights and responsibilities over the access. 

 

However as mentioned by @Ferdinand in any contract negotiation its normally better to be the one that writes and ammends drafts.

 

Shared access roads can be a pain. In England at least... in order to be adopted they typically have to be built to Local Authority standards for a year after the last House is finished or some such. Can be an issue if the last House is never finished. 

 

 

[ProDave]

When we owned a flat in Scotland where the access was over a bit of "communal" land, our flat in common with the others owned a 1/8 share of that land.  I would have expected in this case rather than plot 1 owning the access, that it would jointly be owned by the the plots.

 

[Curtis]

14 hours ago, Ferdinand said:

Are both parties committed to the sale? Does it have PP?

 

What will your solicitor charge to draft it?

 

If it is a reasonably small amount then get it drafted and make your formal offer conditional on it.

 

Dependent on how hot the market is for this plot, reduce your formal offer by a suitable amount.

 

If you have it drafted, it avoids any need for you to waste time quibbling about specifics you disagree with.

 

I had my solicitor draft a clause of easement, they didn't question the wording, so I now have an easement with the widest definition of "services" I have ever seen. I could dig a tunnel to import elephants if I had a decent reason for needing them.

 

The only risk as I see it is either them stealing your wording for the other plots or if your sale falls through. If a sale is agreed I think they would rather have your xxx k rather than kill the sale for the small amount. 

Assuming they *want* to sell it.

 

Where is the downside of your solicitor doing it?

 

The answer to "cui bono?" is most probably you.

 

F

 

 

Thanks for the reply.  

 

Yea i believe everyone is committed to the sale and the plot has planning which is one of the reasons we made an offer.  Our solicitor has said that it would cost about 2.5k to prepare the document but she has said that the seller should have done this before they even advertised the plots for sale and it's their responsibility and she can't prepare a document that covers all the plots as we are only buying one plot and not the whole area, their solicitor disagrees and so we have a stand off.

 

I would probably offer to pay half or even just suck up all the cost rather than let the deal fall through but i just wondered if there was a general rule that this document should be prepared by the selling solicitor.

 

14 hours ago, Temp said:

I would expect the seller to do this normally. Not least so that all three plots have the same rights and responsibilities over the access. 

 

However as mentioned by @Ferdinand in any contract negotiation its normally better to be the one that writes and ammends drafts.

 

Shared access roads can be a pain. In England at least... in order to be adopted they typically have to be built to Local Authority standards for a year after the last House is finished or some such. Can be an issue if the last House is never finished. 

 

 

 

Thanks for the reply.  

That's my solicitors argument, she claims that it is not appropriate for her to prepare the document as it covers more than the plot that we are buying and also the Deed of Conditions needs to be completed and registered agains the title deeds before we can complete on the land in case for whatever reason the paperwork was never filed and the other plots were sold with no reference to the access rights then we would find ourselves with a legally landlocked plot which would give us a headache if we ever came to sell.

 

 

14 hours ago, ProDave said:

When we owned a flat in Scotland where the access was over a bit of "communal" land, our flat in common with the others owned a 1/8 share of that land.  I would have expected in this case rather than plot 1 owning the access, that it would jointly be owned by the the plots.

 

 

Thanks for the reply.

 

The area is a large piece of farmland and so the legal right of access is the old farm gate entrance which is on plot 1 and you would then access plot 2 via another old farmgate but this is within the boundry of plot 1.  Although in recent years (not sure how long ago)  the fence was removed on a section of plot 2 to allow users to access plot 2 direct from the farm track so in reality this won't be a physical issue it's obviously a legal one and a right pain in the neck.

 

[Ferdinand]

On 17/10/2021 at 18:50, Temp said:

 

Shared access roads can be a pain. In England at least... in order to be adopted they typically have to be built to Local Authority standards for a year after the last House is finished or some such. Can be an issue if the last House is never finished. 

 

Anyone is likely to have to pay a commuted sum to cover 25 years' maintenance if a local Council body adopt a road.

 

It is expensive to do.