Commercial property—dealing with undertakings and release of security
Commercial property—dealing with undertakings and release of security

The following Property practice note provides comprehensive and up to date legal information covering:

  • Commercial property—dealing with undertakings and release of security
  • The protocol for discharging mortgages of commercial property
  • Preliminary enquiries of the seller’s lender
  • Will the seller’s lender be separately represented?
  • Will the lender execute the DS1 in advance to be held in escrow?
  • Are the proceeds of sale sufficient to discharge the mortgage?
  • When can the DS1 be released?
  • Suggested completion arrangements and undertakings
  • Release occurs when the completion money is released to the seller’s solicitor
  • Release occurs when the redemption money is released to the seller’s lender’s solicitor
  • More...

This Practice Note sets out the process for dealing with the release of security over commercial (as opposed to residential) property and the issues that must be considered when discharging a commercial mortgage. In most commercial property transactions the buyer and/or the buyer’s lender will insist that the discharge of the seller’s mortgage is available on completion. Since the seller usually needs the proceeds of sale to discharge the mortgage and the seller’s lender will not discharge the mortgage until it has the redemption money, this is usually achieved by:

  1. the seller’s lender signing the DS1 (for a release of whole) or DS3 (for a release of part) in advance and, if appropriate, a deed of release which will release chattels, contracts, warranties and any other assets which are part of the sale but not released by a DS1 (collectively referred to as ‘the DS1’ in this Practice Note)

  2. the seller’s lender releasing the executed DS1 to the seller’s solicitors or the seller’s lender’s solicitors in escrow, and

  3. the relevant solicitors undertaking that:

    1. they are holding a duly executed DS1 in escrow, and

    2. at an agreed point in time, they will date the DS1 and immediately release the same to the buyer

This arrangement can only succeed with the co-operation and agreement of all parties.

Unlike in residential conveyancing, there is no Law Society endorsed code

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