Q&As

A client is purchasing a property where a second trustee has to be appointed as one of the original owners has died. The seller’s solicitor is insisting upon an additional clause in the contract that reads as follows: ‘the parties shall execute the transfer, and the seller shall procure that the second trustee will execute the transfer as a second trustee of the title but without any personal liability.’ Is the ‘without any personal liability’ qualification appropriate in these circumstances?

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Published on LexisPSL on 09/11/2017

The following Property Q&A provides comprehensive and up to date legal information covering:

  • A client is purchasing a property where a second trustee has to be appointed as one of the original owners has died. The seller’s solicitor is insisting upon an additional clause in the contract that reads as follows: ‘the parties shall execute the transfer, and the seller shall procure that the second trustee will execute the transfer as a second trustee of the title but without any personal liability.’ Is the ‘without any personal liability’ qualification appropriate in these circumstances?

Trustees often wish to exclude liability as they enter into the transaction (in this case a transfer) personally. Whether this is accepted by the buyer is a matter of negotiation. Here, the risk for the second trustee is likely to be minimal as they are simply selling a single asset and so they may be persuaded to drop this requirement. The buyer needs to know that the trustee has been duly appointed and can accept receipt of the sale proceeds in order to overreach any equitable interests.

In deciding how to proceed, the following may be considered:

  1. where there is a for

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