Terms Of Business – Commercial Purchases
Terms and Conditions of Solicitors’ Retainer
- Principal purpose of retainer and hours of business. The Solicitors shall (subject as qualified herein) act for the Client to take a registered freehold property (unless otherwise previously disclosed as leasehold) purchase through to completion in a normal manner and time for the fees stated overleaf save for dealing with any personal searches; or acting under bank, housing association or like undertakings that may be required, which will be charged at £80 plus vat. In the event that any purchase falls through these conditions shall apply to any subsequent purchase. (The Solicitors normal business hours shall be 9 a.m. to 1 p.m. and 2.00 p.m. to 5.30 p.m. Monday to Friday excluding bank and public holidays. The Solicitors reserve the right to close for business 2 working days prior to Christmas Day through to New Years Eve inclusive).
- Giving instructions. Obligations, undertakings and mortgages. Appointment as attorneys. Where a property is to be purchased by two or more persons or in the name of a Company or if a name and signature of an authorised third party is inserted overleaf the Client authorises the Solicitors if they so choose to accept instructions given by any one of them or the authorised third party as being on behalf of all of them. Where the Solicitors are requested to give an undertaking the Client authorises the Solicitors to make such amendments to the format as they shall require and the Client undertakes not to do any act or omission which would expose the Solicitors to liability that they would not otherwise have been exposed to provided that if they do they shall indemnify the Solicitors against all costs, claims and demands arising therefrom whilst the Solicitors remain bound by the undertaking. The Client will sign and have witnessed any document or act as required to perfect the title of the Client or the Client’s mortgagees or other lender to the property or other related security when called upon by the Solicitors to do so and the Client further agrees with the solicitor that they will comply with all requirements and conditions of the Client’s lender; correspondingly the Client will indemnify the Solicitors against any loss or liability incurred by the Solicitors in respect of any acts or omissions of the Client in relation thereto. Each of the Partners in the Solicitors are appointed attorneys and agents of the Clients for the purpose of amending and correcting clerical errors and omissions in documents and for perfecting title of the Clients and the Client’s mortgagees and this document shall be regarded as a deed for this purpose.
- Obligations to pay for costs/disbursements, search costs, abortive, additional and mortgage works. The Client will pay to the Solicitors on request their fees and disbursements for official and personal searches including Local, Drainage Search (£120.00), chancel (£24.00), environmental (£178.80), coal report (£75.16), plan search/search plus (£120.00), company (£30.00) searches, Stamp Duty Land Tax, Land Registry fees, Land Charges department fees, Commissioners fees, title indemnity policy premiums, bank or Solicitors charges for the stopping or representation of cheques (£15 plus vat) plus the Solicitors fee of £15 plus VAT for resending a re-issued unpresented cheque plus the archived file retrieval cost detailed below or sending of or processing the receipt of electronic transfer of funds as applicable (£39 plus vat each), fees for arranging indemnity insurance policies (£50 plus vat each), unless specified otherwise on page 1 fee for completion of Stamp Duty Land Transaction Return form or a Power of Attorney if applicable (£75 plus vat) See Guidance Notes, debit/credit card handling charges at the rate of 2% (up to a maximum of £15 plus vat in the case of a debit card) of the payment authorised to be collected, landlords’ and managing agents or their Solicitors’ fees’, mortgagees fees, separate mortgagees’ Solicitors’ fees, local authority fees, payments on account of costs and disbursements, and any other monies paid or to be paid by the Solicitors on behalf of the Client. The Solicitors are authorised to conduct Local Authority searches and enquiries, coal reports, environmental searches, plan, chancel, tin mining searches and any other search using either their own staff or agency staff or outside organisations. The amount payable by the Client in respect of such searches shall be the same as the official search fee. Where an official search is not obtained the sum paid by the client shall be retained by the Solicitors as fees in connection with obtaining, managing and generally dealing with the agency or other search that they arrange. If the Solicitors are instructed by the Client’s lender(s) then their legal fees in acting for each lender will be payable by the Client at the rate of £120 plus vat each or greater sum as advised by the lender in the clients mortgage offer. Where a lender instructs Solicitors other than the Solicitors acting for the Client then the Client’s Solicitors work for dealing with the separate Solicitors and advising the Client as necessary shall be charged as additional work at the said rates as if they had been instructed by the lender to act for it. The Solicitors charges for any abortive work carried out by them will be calculated at the discounted rate of £150 per hour plus vat but limited to a proportionate part (see Guidance Notes) of the fees that would have been payable had the matter completed, including acting in relation to any mortgage where a mortgage offer has been issued. Any general additional work will be calculated at £180 per hour plus vat. The abortive fee charged may therefore exceed the basic fee initially quoted for a completed transaction, after taking into account additional work which may have been carried out as described in conditions 3 and 4 below. There will be an additional fee payable to Solicitors inclusive of vat of £360.00 if a Deed of Goodwill is required, £216.00 each for a Licence to Assign and Rent Deposit Deed.
- What amounts to additional work. The Solicitors are authorised and reserve the right to make a charge at the rates referred to in Condition 3 (£180 per hour plus vat) for any additional work which may be requested by the Client of which in the Solicitors opinion be required in the interest of the Client, or where the matter proves to be complex or more time consuming than expected, such as dealing with unregistered, defective or split title, undisclosed leasehold or shared equity titles, contract races, postponing or dealing with a late completion, following the loss of postal items whilst in transit, or where the Solicitors are expected to communicate with third parties or intermediaries or where the seller does not have representation by a solicitor or licensed conveyancer, or dealing with additional money laundering investigation. The client shall also pay to the Solicitors the costs of couriers, recorded, registered or special deliveries’ postage, and non-UK postage, telephone and facsimile transmission charges. Where the Solicitors are required to complete the transaction in ten working days or less after exchange of contracts expedition fees will be payable by the client at the rate of £50 plus vat and if the solicitors are required to complete the transaction in 5 working days or less after exchange of contracts expedition fees will be payable by the client at the rate of £100 plus vat. The Solicitors shall not be obliged to accept instructions to complete in five working days or less from exchange of contracts.
- Client due diligence and anti money laundering matters. The Solicitors comply with the Money Laundering Regulations 2007 and the Proceeds of Crime Act 2002 reporting procedures. In certain circumstances, information will be revealed by the Solicitors to the appropriate authorities in relation to any suspicion of money laundering without notifying the client where, for example, the solicitors have to stop working in the clients matter for a period of time. The Solicitors are duly authorised to make such disclosures which shall be deemed not to be a breach of confidentiality. The Solicitors shall not be liable for any loss or damage incurred as a consequence of their complying with the above or any other statutory or regulatory obligation. Telephone calls may be recorded and the Client consents to this. The Client shall comply with the reasonable requests of the Solicitors, including producing identification documents for themselves or for people related to the client (beneficial owners) where relevant and evidence of source of funds if requested. Failure to do so on first request may result the Solicitors ceasing to act for the Client.
- Limitations of retainer re planning/building regulations. The Client agrees that the Solicitors shall not be required to obtain verification or evidence that any construction of, alteration or addition to, or use of the property being purchased or any part of it, complies with planning law conditions or Building Regulations and the Client warrants that in lieu thereof they will refer such matters to their surveyor in particular to verify the structural state and condition of the property including any alterations or additions that have been carried out to it. The Solicitors duty shall not extend to advising the Client on potential future changes of use or development unless the Client shall have specifically requested advice on this in writing which advice shall be regarded as additional work.
- Payment of monies by the client. The Client warrants that all monies required in connection with the purchase will be available when requested. The Client agrees that the Solicitors shall not be obliged to complete the purchase unless their fees and disbursements are paid in full and cleared in their bank account on or before completion and the Solicitors shall not be responsible for any loss or expense consequent on their ceasing to act in such circumstances. The Solicitors shall be entitled in their absolute discretion to decline to accept or limit the amount that can be paid by credit/debit card. The Solicitors may deliver interim bills and may charge interest on any or part of any bill if unpaid. If the Solicitors are required to pay out cleared funds against an uncleared effect then the Client shall pay interest to the Solicitors of an amount equal to the interest the Solicitors would otherwise have earned on the monies paid out.
- Relationships with others. Disclosures. Acting for other parties on same transaction. The Solicitors are authorised to adopt all or part of the Law Society’s National Conveyancing Protocol. Further where the Solicitors are instructed by the Client’s lender the Solicitors are authorised to disclose to and seek approval from the Client’s lender (if any) upon any matter such as differences between or absences of facts in the transaction or mortgage offer which, in the Solicitors opinion, ought to be brought to the lenders attention for clarification of instructions. The Solicitors are authorised to discuss the Client’s transaction with involved parties such as estate agents, introducers or brokers provided there is no conflict of interest. The Solicitors are authorised to outsource typing/photocopying/other works to avoid delays and the client also agrees that the solicitors may arrange for external firms or organisations to conduct audit or quality checks subject to such outsourcing bodies or external organisations maintaining confidentiality. The Client may at any time revoke these authorities by notice in writing. The Client (not being a builder or developer) consents to the Solicitors through the same or any other of their branch offices acting for the seller with whom the Client intends to contract provided that a different representative within the Solicitors should represent that other party and that there shall be no conflict of interest.
- Payment of monies to client. Post completion/future dealings. Subject to any undertaking the Solicitors will account to the Client for any balance due by way of client account cheque only and if the Client comprises more than one person, then in their joint names, within 2 working days of completion, less any monies required for use in connection with a related transaction and shall not be obliged to account to any third party or by any other method. Money held by the Solicitors for a specified purpose shall be subject to a prior lien for costs owed to them. It is agreed that the Solicitors shall have properly discharged their responsibilities in the despatch of mail by using Royal Mail 1st or 2nd class or Britdoc Limited DX mail system. Any monies received on the clients behalf will be held in the Solicitors’ client account. Potential interest due to the client will be calculated at the rates set by the solicitors bankers (RBS) usually from the date funds are received by us until the date the cheque or payment is issued. The Solicitors shall not be required to open a special deposit account or account to the Client for interest or compensation in lieu of interest which ought to accrue on any money received by the Solicitors for or on behalf of the Client where such sum would amount to a de minimis sum of not more than £20, nor where the Solicitors do not hold the sums for the periods set out in rule 24 of the Solicitors Accounts Rules 1998 (details available upon request). The Client agrees that if information or documents are required from a file which has been archived or if the Client requires their file or such part of it as they are entitled to to be forwarded to them the Solicitors shall be entitled to make a reasonable charge estimated at £20 plus vat for processing the request to extract and dispatch such information or documents held by them and additional fees as calculated in clause 3 above for complying with any other part of the request if more time involved. The Solicitors fee for optional file storage for periods over 6 years and up to 12 years from the date of completion shall be £12 plus VAT.
- Statutory matters, insurance and liability. Responsibility for work. The fees, vat, disbursements, expenses and third party payments are given in good faith, at current rates and on the basis of information supplied to the Solicitors by the Client or on behalf of the Client; they are subject to variation by statutory or other bodies without notice. All fees and charges are subject to VAT at the prevailing rate. The Solicitors’ liability to the Client shall be limited to a maximum of £2 million being the minimum level of cover required by the Solicitors Indemnity Rules. However the solicitors will not be liable for any consequential, special, indirect or exemplary damages costs or losses or any damages costs or losses attributable to lost profits or opportunites. The Solicitors shall not be liable to the Client in the event of the bank with whom the Solicitors place the Clients money fails/collapses. This clause does not affect the Client’s other statutory rights. The Solicitors will not be expected to give any tax advice on any aspect of the transaction nor advice as to the suitability merits or otherwise of the terms or type of mortgage that the Client enters into. The Client agrees that the Solicitors may arrange for the work to be carried out by a combination of admitted and unadmitted staff or their outsourced agents. The Solicitors shall not be deemed to be aware of the contents of E-mail messages until the same have actually been read by the individual to whom they have been sent. E-mail is used at the sender’s risk. The Solicitors shall not be liable for any costs, losses or expenses incurred by the Client arising from or in connection with any computer system (whether or not the property of the Solicitors) being affected by viruses. This agreement does not create any right enforceable by any person not a party to it except that any person who is the permitted successor to or assignee of the rights of a party is deemed to be a party to this agreement. It is agreed that the Court of jurisdiction with regard to any dispute arising from this agreement shall be Colchester County Court, it being agreed that this is the Court of greatest convenience to the Solicitors.
- Insurance, financial and regulatory matters. The Solicitors are regulated by the Solicitors Regulation Authority. The Solicitors are not authorised by the Financial Services Authority. However the Solicitors are included on the register maintained by the Financial Services Authority so that the Solicitors can carry on insurance mediation activity which is broadly the advising on, selling and administration of insurance contracts. This part of the Solicitors’ business including arrangements for complaints or redress if something goes wrong is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services Authority website at: www.fsa.gov.uk/pages/register. The Solicitors only select products from a limited number of insurers for title indemnity insurance contracts being those routinely used by the Solicitors’ profession and are not necessarily (nor shall the Solicitors be obliged to source) the cheapest policy. The Law Society of England and Wales is a designated professional body for the purposes of the Financial Services and Markets Act 2000. The Solicitors Regulation Authority is the independent regulatory arm of the Law Society. The Legal Ombudsman deals with complaints against Lawyers. If you are unhappy with any insurance advice you receive from us, you should raise your concerns with either of these bodies.
- Length of validity of quote and terminating retainer. The Solicitors reserve the right to re-quote and/or terminate the retainer if the transaction quoted for has not completed within 12 months from the date of the quotation. The client may terminate the retainer in writing at any time. The Solicitors may only terminate the retainer on giving you reasonable notice with good reason.
- Right to Challenge. The Client acknowledges that they have read, checked (amended if necessary) and understood this form and Guidance Notes prior to signing and returning it, and that it accords with the terms, conditions and details upon which the Client intended to instruct the Solicitors.
Solicitors’ Head Office address: Great Square, Braintree, Essex CM7 1UD Tel: 01376 326868 Fax: 01376 550003
© Cunningtons 2011