Hello

I'd really appreciate a view from anyone in the know.

In summary, in April I bought a property with a friend, and paid
(upfront to get a discount) a recommended (and supposedly award
winning) provincial property law firm to create a legal agreement to
recognise the split of equity, finances and usage of the property
between the parties.

The base template was a stock "Declaration of Trust" which set out the
financial input and equity split of the property between the parties.
However, I also asked the lawyer (in writing, from the outset) that I
wanted to expand the agreement and include various other clauses
covering the responsibilities and indemnities for each party to pay
certain running costs, term of the agreement, termination, post
termination events (inc exclusive right to buy out the other party) and
a couple of simple schedules setting out the "terms of co-usage /
occupation" of the property.

I got a first draft back from the lawyer after several weeks, which was
a partial hybrid as above, and included some of the other elements not
just the basic out of the draw "Declaration of Trust". But it was
missing a lot of key points, had many errors, and was pretty shoddy in
layout.

Having scoped the commercials, negotiated and worked on the drafting
(with my legal counter-parts), many, many complex business legal
contracts in my profession over the years, I decided rather than e-mail
back comments, to OCR scan the v1 draft, and correct the errors and add
the missing detail and the schedules / annexes and tidy it up. Then
e-mailed back the revision marked draft to the lawyer for his final
comments, which I expected to be minimal, with a view to then printing
and executing the agreement with the other party.

After a months wait I get a reply from the law firm, which cutting
through a lot of petulant waffle and obvious umbridge at being "red
penned" by a lay client, there were only 2 very minor drafting issues
with my amendments, which I corrected in 60 secs.

HOWEVER, the lawyer suddenly stated that he's not even sure it's
legally binding to include the points re split of payments / financial
indemnities between the parties and the usage of the property, as a
Declaration of Trust is an agreement purely to do with split of
ownership of the property and equity by the party or their estate, and
that I should simply accept his first draft, or the firm effectively
washes its hands of my v2 and couldn't be held responsible for any loss
due to executing the v2!!!

I was flabbergasted and furious. Not to mention bemused, as his v1
draft was already well down the road to being a hybrid agreement.

I am keen to get an informed view of whether he is talking nonsense or
if there is the basis of a point here. Surely any coherent agreement,
provided it falls within the aegis of UK law, makes sense, is clear,
logical, and agreed by both parties is legally binding even if it is
not some stock boilerplate out of the bottom draw of a lawyer clearly
wanting to just knock out vanilla agreements and not get embroiled in
and bespoke contracts.

However, that's what I stated I wanted in writing from the outset, and
he commenced down this path, then has turned the tables and said he
believes it may not be valid, (but he's actually not 100% sure), as
it's no longer a simple Declaration of Trust stating ownership split in
property, but merges the principles of a joint tenancy agreement into a
single contract.

Any views much appreciated.

Cheers

SB




-- 
SB1

Sat, 5 Jul 2008 19:15:05  
uk.legal.moderated SB1 

>
>Hello
>
>I'd really appreciate a view from anyone in the know.
>
>In summary, in April I bought a property with a friend, and paid
>(upfront to get a discount) a recommended (and supposedly award
>winning) provincial property law firm to create a legal agreement to
>recognise the split of equity, finances and usage of the property
>between the parties.
>
>The base template was a stock "Declaration of Trust" which set out the
>financial input and equity split of the property between the parties.
>However, I also asked the lawyer (in writing, from the outset) that I
>wanted to expand the agreement and include various other clauses
>covering the responsibilities and indemnities for each party to pay
>certain running costs, term of the agreement, termination, post
>termination events (inc exclusive right to buy out the other party) and
>a couple of simple schedules setting out the "terms of co-usage /
>occupation" of the property.
>
>I got a first draft back from the lawyer after several weeks, which was
>a partial hybrid as above, and included some of the other elements not
>just the basic out of the draw "Declaration of Trust". But it was
>missing a lot of key points, had many errors, and was pretty shoddy in
>layout.
>
>Having scoped the commercials, negotiated and worked on the drafting
>(with my legal counter-parts), many, many complex business legal
>contracts in my profession over the years, I decided rather than e-mail
>back comments, to OCR scan the v1 draft, and correct the errors and add
>the missing detail and the schedules / annexes and tidy it up. Then
>e-mailed back the revision marked draft to the lawyer for his final
>comments, which I expected to be minimal, with a view to then printing
>and executing the agreement with the other party.
>
>After a months wait I get a reply from the law firm, which cutting
>through a lot of petulant waffle and obvious umbridge at being "red
>penned" by a lay client, there were only 2 very minor drafting issues
>with my amendments, which I corrected in 60 secs.
>
>HOWEVER, the lawyer suddenly stated that he's not even sure it's
>legally binding to include the points re split of payments / financial
>indemnities between the parties and the usage of the property, as a
>Declaration of Trust is an agreement purely to do with split of
>ownership of the property and equity by the party or their estate, and
>that I should simply accept his first draft, or the firm effectively
>washes its hands of my v2 and couldn't be held responsible for any loss
>due to executing the v2!!!
>
>I was flabbergasted and furious. Not to mention bemused, as his v1
>draft was already well down the road to being a hybrid agreement.
>
>I am keen to get an informed view of whether he is talking nonsense or
>if there is the basis of a point here. Surely any coherent agreement,
>provided it falls within the aegis of UK law, makes sense, is clear,
>logical, and agreed by both parties is legally binding even if it is
>not some stock boilerplate out of the bottom draw of a lawyer clearly
>wanting to just knock out vanilla agreements and not get embroiled in
>and bespoke contracts.
>
>However, that's what I stated I wanted in writing from the outset, and
>he commenced down this path, then has turned the tables and said he
>believes it may not be valid, (but he's actually not 100% sure), as
>it's no longer a simple Declaration of Trust stating ownership split in
>property, but merges the principles of a joint tenancy agreement into a
>single contract.
>
>Any views much appreciated.

Is the other party to the agreement happy with your V2?

If you and they are both in agreement I'm not sure why the lawyer should 
be objecting except, perhaps, that it isn't a boilerplate agreement.

My suggestion is if you aren't getting satisfaction, try another lawyer.

Sometimes a small, local firm will pay more attention to what you want 
to achieve.

-- 
Wm...
Reply-To: address valid for at least 7 days

"Wm..."  wrote in message 
news:RQKSNcPiHJcIFwJG@[127.0.0.1]...
> Sat, 5 Jul 2008 19:15:05  
> uk.legal.moderated SB1 
>
>>
>>Hello
>>
>>I'd really appreciate a view from anyone in the know.
>>
>>In summary, in April I bought a property with a friend, and paid
>>(upfront to get a discount) a recommended (and supposedly award
>>winning) provincial property law firm to create a legal agreement to
>>recognise the split of equity, finances and usage of the property
>>between the parties.
>>
>>The base template was a stock "Declaration of Trust" which set out the
>>financial input and equity split of the property between the parties.
>>However, I also asked the lawyer (in writing, from the outset) that I
>>wanted to expand the agreement and include various other clauses
>>covering the responsibilities and indemnities for each party to pay
>>certain running costs, term of the agreement, termination, post
>>termination events (inc exclusive right to buy out the other party) and
>>a couple of simple schedules setting out the "terms of co-usage /
>>occupation" of the property.
>>
>>I got a first draft back from the lawyer after several weeks, which was
>>a partial hybrid as above, and included some of the other elements not
>>just the basic out of the draw "Declaration of Trust". But it was
>>missing a lot of key points, had many errors, and was pretty shoddy in
>>layout.
>>
>>Having scoped the commercials, negotiated and worked on the drafting
>>(with my legal counter-parts), many, many complex business legal
>>contracts in my profession over the years, I decided rather than e-mail
>>back comments, to OCR scan the v1 draft, and correct the errors and add
>>the missing detail and the schedules / annexes and tidy it up. Then
>>e-mailed back the revision marked draft to the lawyer for his final
>>comments, which I expected to be minimal, with a view to then printing
>>and executing the agreement with the other party.
>>
>>After a months wait I get a reply from the law firm, which cutting
>>through a lot of petulant waffle and obvious umbridge at being "red
>>penned" by a lay client, there were only 2 very minor drafting issues
>>with my amendments, which I corrected in 60 secs.
>>
>>HOWEVER, the lawyer suddenly stated that he's not even sure it's
>>legally binding to include the points re split of payments / financial
>>indemnities between the parties and the usage of the property, as a
>>Declaration of Trust is an agreement purely to do with split of
>>ownership of the property and equity by the party or their estate, and
>>that I should simply accept his first draft, or the firm effectively
>>washes its hands of my v2 and couldn't be held responsible for any loss
>>due to executing the v2!!!
>>
>>I was flabbergasted and furious. Not to mention bemused, as his v1
>>draft was already well down the road to being a hybrid agreement.
>>
>>I am keen to get an informed view of whether he is talking nonsense or
>>if there is the basis of a point here. Surely any coherent agreement,
>>provided it falls within the aegis of UK law, makes sense, is clear,
>>logical, and agreed by both parties is legally binding even if it is
>>not some stock boilerplate out of the bottom draw of a lawyer clearly
>>wanting to just knock out vanilla agreements and not get embroiled in
>>and bespoke contracts.
>>
>>However, that's what I stated I wanted in writing from the outset, and
>>he commenced down this path, then has turned the tables and said he
>>believes it may not be valid, (but he's actually not 100% sure), as
>>it's no longer a simple Declaration of Trust stating ownership split in
>>property, but merges the principles of a joint tenancy agreement into a
>>single contract.
>>
>>Any views much appreciated.
>
> Is the other party to the agreement happy with your V2?
>
> If you and they are both in agreement I'm not sure why the lawyer should 
> be objecting except, perhaps, that it isn't a boilerplate agreement.
>
> My suggestion is if you aren't getting satisfaction, try another lawyer.
>
> Sometimes a small, local firm will pay more attention to what you want to 
> achieve.
>
It could well be undesirable to have commercial terms and property title 
issues mixed in one document, especially if it needs registering at the Land 
Registry and becomes a public document. There could be concerns over which 
terms are binding on future owners of the property and which are personal to 
the present parties, or whether non-compliance with the commercial terms 
affects the equitable ownership of the property.

It sounds to me as if the lawyer is concerned that he is being asked to do a 
lot more work that wouldn't be covered by his fee quote. One of the reasons 
lawyers use standard documents is that it is a great deal quicker and 
cheaper than thinking about the issues and drafting a bespoke document from 
first principles. Often, too, there are good reasons why things are 
generally done the way they are, which may not always be obvious to those 
involved, including lawyers.

Chris R

Chris R

Chris R  posted
>It could well be undesirable to have commercial terms and property title
>issues mixed in one document, especially if it needs registering at the Land
>Registry and becomes a public document.

A declaration of trust does not need to be a public document. The Land 
Registry need be told only the names of the joint owners. No other 
details (even the equity split) need be known to anyone other than the 
signatories to the trust.

>There could be concerns over which
>terms are binding on future owners of the property and which are personal to
>the present parties, or whether non-compliance with the commercial terms
>affects the equitable ownership of the property.

Fair points, but the declaration should be drafted to cover them.

-- 
Les Invalides

"SB1"  wrote in message 
news:SB1.2b56df3@legalbanter.co.uk...
>
> HOWEVER, the lawyer suddenly stated that he's not even sure it's
> legally binding to include the points re split of payments / financial
> indemnities between the parties and the usage of the property, as a
> Declaration of Trust is an agreement purely to do with split of
> ownership of the property and equity by the party or their estate, and
> that I should simply accept his first draft, or the firm effectively
> washes its hands of my v2 and couldn't be held responsible for any loss
> due to executing the v2!!!
>
> I was flabbergasted and furious. Not to mention bemused, as his v1
> draft was already well down the road to being a hybrid agreement.

You'll hold him responsible if your version turns out to be wrong.

>
> However, that's what I stated I wanted in writing from the outset, and
> he commenced down this path, then has turned the tables and said he
> believes it may not be valid, (but he's actually not 100% sure)

Quite - he's not sure. There may be conflicting case-law, or it may simply 
require more research than is commercially viable. He's perfectly entitled 
to withdraw, and I'm surprised he's done as much work as he has before doing 
so.

On Sun,  6 Jul 2008 16:30:10 +0100, "GB"  wrote:

> "SB1"  wrote in message 
> news:SB1.2b56df3@legalbanter.co.uk...
>>
>> HOWEVER, the lawyer suddenly stated that
...
>> I should simply accept his first draft, or the firm effectively
>> washes its hands of my v2 and couldn't be held responsible for any loss
>> due to executing the v2!!!
>
> He's perfectly entitled 
> to withdraw, and I'm surprised he's done as much work as he has before doing 
> so. 

I do not see that he withdrew.

Tony

On Jul 7, 6:25 am, "Anthony R. Gold"  wrote:
> On Sun,  6 Jul 2008 16:30:10 퍝, "GB"  wrote:
> > "SB1"  wrote in message
> >news:SB1.2b56df3@legalbanter.co.uk...
>
> >> HOWEVER, the lawyer suddenly stated that
> ...
> >> I should simply accept his first draft, or the firm effectively
> >> washes its hands of my v2 and couldn't be held responsible for any loss
> >> due to executing the v2!!!
>
> > He's perfectly entitled
> > to withdraw, and I'm surprised he's done as much work as he has before doing
> > so.
>
> I do not see that he withdrew.
>
> Tony

Come on this is not very far short of a normal template with your
special requests to be included, and of course its arguable anywhere
anytime, whats all the fuss about, the OP I would think is having a
go.

Thank you all for your considered comments.

Whilst it's clearly not a "no brainer", the overwhelming evidence of
responses I'm getting from this and other forums seems to suggest that,
it's perfectly feasible and non controversional or ground-breaking to
create such a hybrid, but requires rather more work (or existing
knowledge and experience than the lawyer in question has).

And most likely, he has offered a fixed price for a 30 min template
job, without really thinking through (or even reading in detail) the
nature of the additional non-bog-standard detail requested from the
outset.

If they still point blank refuse to do anything about it, (unless for
further cost), what recourse would I have?

Many thanks

SB




-- 
SB1

On Mon,  7 Jul 2008 13:15:05 +0100, SB1 
wrote:

> If they still point blank refuse to do anything about it, (unless for
> further cost), what recourse would I have?

I suggest you use what they have done for the Declaration of Trust and ask
them or someone else to prepare an interrelated agreement that will address
the other issues by which you wish the parties to be bound.

Tony