4 responses

  1. Charles Marchant-White
    July 17, 2012

    I guess that lawyers are concerned about what authority they have when dealing with the redemption of a mortgage to take this positive step. Do their lender instructions entitle them to do so? Perhaps there should be some guidance – note of best practice – issued by the Law Society on the issue. Perhaps it should be included with the CQS provisions.


    • Justin
      August 26, 2012

      Thanks for these comments, and the many off-line comments I have received.

      In the last couple of weeks, I have found fewers selers’ solicitors objecting to giving an assurance that they will sign a form RX4 if there is a delay in the lender discharging their mortgage. I have also found more purchasers’ conveyancers asking me, when acting for a seller, to agree to sign a form RX4 – which, of course, I do: I can see no ground on which a dilatory lender can object to the removal of a redundant restriction in order to minimise the problems caused by their own delay.

      It seems to me that any seller’s conveyancer in these circumstances should be happy to do the same. Where they prove reluctant, an alternative might be to ask them to expand on their undertaking to discharge the mortgage, by saying that they have paid to the lender the amount required to redeem their loan – this could then be used as evidence to support an application in form RX3 by the buyer’s conveyancer for the restriction to be removed.


  2. Chris Huntingford
    July 17, 2012

    I’m not sure I agree…accepting the premise that when redeeming a mortgage we are acting as the lenders agent to redeem the mortgage doesn’t necessarily confer upon us instructions from the lender to remove their restriction that is registered against the title.

    I would be reluctant to sign an RX3 on behalf of a lender without an express instruction that I am authorised to do so. Does acting as the “agent” of the lender confer the same level of authority as acting as a lender’s “conveyancer” which is the term referred to in the RX3? As an agent we are instructed to receive the redemption monies and forward to the lender, I would argue that is the extent of our authority in the matter and to take further steps to remove the lender’s restriction would be to step outside the scope of acting as “agent”?


  3. Michael Dibben
    July 17, 2012

    I must admit that as a seller’s solicitor I would have reservations about signing an RX3 in these circumstances without my lender client’s express instruction to do so. From the lender’s point of view they would not expect the Restriction to be cancelled until such time as the charge itself is cancelled. In any event the removal of the Restriction is only part of the required process. While the old lender’s legal charge remains on the register, the seller’s solicitor has not completed their obligation to the buyer’s solicitor, and the buyer’s solicitor has not fulfiled their own obligations to their buyer and lender client. The real problem to be tackled is the sub-standard service level of some lenders in cancelling their charge promptly once the loan has been repaid. To some extent the advances in electronic discharge processes may help, but what is really needed is some commitment by CML to an agreed timescale. It is after all very often the new lender who is applying the pressure, as it is no use to them to have their new mortgage secured only as a second charge behind the (redundant) old charge. Ironically we have sometimes found ourselves chasing the old lender on behalf of the same bank as the new lender who requires registration of their first charge.


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