# Non compliant property mortgage and vulture fund



## Jess015 (17 Apr 2021)

I’m looking for clarity around a mortgage that was granted on a self build in 2003 an architect was hired to oversee construction however house is non Compliant and I have been advised should be demolished. Property was built by direct labour and ment to be supervised by architect who signed off on stage payments certs accepted by Solicitor.
When I noticed apparent issues I contacted solicitors and  advised if these and not to release title deeds to bank as I had been to another solicitor and a possible Court  case was pending re construction and there was also no valid search of compliance available. 
Solicitor used for draw down kept requesting cert of Compliance and  I kept advising that a valid one was not available.
 However, a cert of Compliance the architect issued and then withdrew was provided to this  solicitor from whom I am unsure and my deeds ect  sent to the bank that issued mortgage  a number of years later in 2010/11With my title deeds and the bank released him from his undertaking  on the grounds that they would rely on them should any further issues arise.
Due to very unsatisfactory legal representation from my side in case against architect by a different solicitor firm the insurance company for the architect were allowed off record in the High Court in 2019 and I am now trying to sort this mess myself,
I stopped paying mortgage in 2016 due to bank not co operating as promised with me and since the  bank that granted the original mortgage just  sold it on as non-performing to a vulture fund who are now trying to repossess my dwelling and have been advised by me if the issues 
The property has site value only which was a gift to me from a family member
It’s not compliant or fit for purpose
Its not even  built off the plans submitted to  planning authority.

In my eyes these professionals were paid in full for protecting my interests provided an undertaking and had a duty of care to me which they totally did not provide,
 and after paying thousands of euro back on property worth nothing
I am not sure Firstly where I stand legally in relation to the solicitor hired on mortgage drawdown and undertaking on property that’s non-compliant or fit for purpose
Secondly on my legal rights with bank and if the properly can in fact  be repossessed as house built is not house submitted to planning offices and approved and what my legal rights are I would really appreciate some Clear advice and clarity at this stage as I have asked members of the legal profession and they are very unclear or  not interested. I have also tried to deal with  the bank who from what I’ve seen are totally overlooking the situation only want repossession.


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## skrooge (17 Apr 2021)

2 different issues here. First seems to relate to the process of building and subsequent issues. The second part is your decision to stop paying your mortgage.

Those first issues really aren't the concern of your mortgage provider. These are issues for you. 

You stopped paying your mortgage. Your current mortgage provider/fund will repossess the house/land as per the mortgage contract - I imagine both are specified as collateral in the contract. Whether or not the house meets building regs, compliant with planning position and is habitable doesn't really matter to the bank if you meet your payments. Yes it will effect the value but that's only the concern of the fund once they repossessed the house.


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## Jess015 (17 Apr 2021)

Thank you for your advice 
I didn’t actually just stop paying the mortgage I had agreed a restructure with the original bank but they did not stand by our agreement it’s not a straight cut situation my post is only the main points but I do take on board what you are saying


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## RedOnion (17 Apr 2021)

Jess015 said:


> I am not sure Firstly where I stand legally in relation to the solicitor hired on mortgage drawdown and undertaking on property that’s non-compliant or fit for purpose


Your entire post is very difficult to follow. But on this point - what undertaking? The one that the solicitor had with the bank? 

When it comes to a mortgage, the solicitors responsibilities are to the bank, to ensure the bank has security by way of charge on the property. 

As for the bank / fund. You drew down the money, so you owe it. The fact the house isn't compliant, just means the bank has very little security (or possibly worthless). But the fact your architect didn't oversee the build properly has nothing to do with the bank. 
If the bank repossessed your house, they could potentially sue the architect, as funds were issued in strength of their certificates, but I've never heard of such a case being taken. 

For something that's going on for 18 years, and you've already been to High Court in relation to, I think you should be able to set out the pertinent facts a bit more clearly and make it easier for posters to understand exactly what you want help with.


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## Brendan Burgess (17 Apr 2021)

As others have pointed out it is very difficult to follow your story, but having said that...



Jess015 said:


> In my eyes these professionals were paid in full for protecting my interests provided an undertaking and had a duty of care to me which they totally did not provide,



So you had no duties yourself? 

It sounds as if you watched your home being built in a manner which was non-compliant with the planning permission.

Then you subsequently drew down a mortgage, knowing that the building was non-compliant.

Then the lender "refused to cooperate with you" in restructuring your mortgage.

And you feel let down by the professionals? 

You have made a mess of this.
Engage with the vulture fund.
Agree to surrender the house and they will probably write off the balance of the mortgage if you have no other assets.

However, if you have other assets, then they will pursue you to repay the loan in full. 

Brendan


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## Jess015 (17 Apr 2021)

No I didn’t watch my home being built non compliant I trusted the people I paid to do that the architect and solicitors on drawdown 
I knew nothing of building regulations or compliance 
It was only after I moved into it obvious faults started appearing


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## Seagull (19 Apr 2021)

Your only valid target is the architect who failed to oversee the build and ensure it was in compliance. If the contract was that he would oversee the build, then you should have been taking a case against him and his insurance to have the compliance issues rectified.


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## Jim Stafford (19 Apr 2021)

RedOnion said:


> When it comes to a mortgage, the solicitors responsibilities are to the bank, to ensure the bank has security by way of charge on the property.


 RedOnion has identified the real issue here.  Your solicitor was probably required to provide a Certificate of Title/Marketability to the bank. If he did provide such a certificate then it was obviously misleading. Your original bank should have sued the solicitor. 

I suggest that your next step is to submit a Data Subject Act Request to the bank and get a copy of your file. If that file shows that the bank knew about the problems but neglected to issue proceedings against the solicitor than I would suggest that you have a partial defence to the vulture fund's claim.

Jim Stafford


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## Jess015 (23 Apr 2021)

Seagull said:


> Your only valid target is the architect who failed to oversee the build and ensure it was in compliance. If the contract was that he would oversee the build, then you should have been taking a case against him and his insurance to have the compliance issues rectified.


I have a high court case ongoing but his insurance company were allowed off record as they claimed he wouldn’t co operate with them


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## Clamball (25 Apr 2021)

I see two separate issues as well.  You are taking a case against your architect and his insurance company.  The insurance company said the architect was non co-operative with them so more than likely in breach of his insurance contract and thus have no further liability.  You continue to pursue the architect through the courts to be held liable for poor work.  If you win will you be able to get damages and costs from the architect?  Who knows, but at least you will know he was to blame if you win.

The other total separate item is that you took a loan from the bank, and you are not paying it back.  So if you took out a loan for €100K a bought say a boat, and it accidentally went on fire.  You end up with no boat and owing the bank €100K.  You still have to pay off the loan even if you have no asset.

I have a lot of sympathy for you because you were the the victim of a poor architect.   And if he had co-operated with his insurance company you may have solved the issue at arbitration, but he didn’t.  

As to what to do next?  Should you withdraw from the high court case.  It will cost you an awful lot of money, which you would have been advised about from the start.  But is it the best step?

Should you prioritise paying off the money you owe to the bank?  You obviously still continue to live in the house so it must be safe to still live in, so there is that at least.  (I have heard of an engineer who was inspecting a house for poor build quality who became so concerned about the structural safety of the house he recommended the occupiers vacate on the spot).  The issue of it being non-complaint with planning only becomes an issue if you want to sell.  

You should not consider all your issues being connected.   I think the  bank relying on a subsequently withdrawn compliance certificate before they drew down the mortgage is a red herring.  The only outcome is that you sue the architect which you are already doing.


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## Seagull (26 Apr 2021)

They should change professional indemnity insurance to the same basis as third party car insurance, in that where the client has breached the insurance conditions, the insurer still has to make good the injured party, but can in turn pursue their client for costs.


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## Ravima (3 May 2021)

Jess015, you are in a terrible position, but what's the point of continuing to sue the architect if there is no insurance behind him? Will you be able to collect any money that a court might award against him? Worse, if he can't pay up, you will have to pay your own expenses in the case. From the picture you paint, this will not be cheap. You are in High Court, so you have a solicitor a BL and an SC. You also will have professional witnesses, other engineers/architects at a minimum. 

If architect is still in business and a member of a professional body, you might be able to complain. However, from memory, I think anyone could call themselves an architect back in 2003. Now they must all be professionally trained.


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