Title guarantee in TOLATA application

We recently obtained an order for sale where our client’s estranged husband was refusing to agree to a sale of a rundown property despite the local authority threatening to take action against them. The order provides for a judge to sign the contract and transfer if husband still refuses. Having given him ample opportunity to sign it we now intend to submit it to the judge for signature. However, my colleague has been told by a solicitor who had a similar matter that the judge declined to sign her paperwork because he said he could not give a title guarantee. My colleague is now wondering whether we should ask the buyer’s solicitors to accept that we will give no title guarantee. That would seem an odd situation to me but I hesitate to argue with a judge. I’d be pleased to hear from anyone with experience of this type of application who can advise what they do if the paperwork has to be signed by a judge.

Mrs J E Bennell

Whilst I have not experienced this type of situation before, it appears to me that the judge will be acting in a similar way to, say, an LPA receiver and therefore, at most, should give no more than limited title guarantee.

As you colleague suggests, it’s worth asking the buyer to accept that no title guarantee will be given, although before doing so it’s probably worth running the contract past the court give the judge an opportunity to confirm what they are willing to sign up to, which should strengthen your hand when talking to the (prospective) buyer.

Paul Saunders

It is not unusual for there to be no title guarantee where for example it is a sale by a mortgagee in possession or by the Treasury Solicitor or with possessory title but that is something a buyer’s lender may not accept. A sale under an LPA should be with full title guarantee as the Attorney is standing in the shoes of the Donor of the Power and not as Trustee. The asset remains in the name of P and there has been no transfer of beneficial interest. So I would suggest that as the asset is still in the name of the husband it should be with full title guarantee as it is not the judge who is selling. I have only ever once sold a property where a judge signed and that was with full title guarantee.

Nicola Briggs
Switalskis Solicitors