Leasehold Property law. Personally delivered.
Leasehold Property law. Personally delivered.
Your lender has asked you to see a solicitor who is not acting on the transaction. We give that advice for guarantors, company directors, occupiers and anybody else putting themselves or their property behind somebody else’s borrowing — usually within a day or two, and same-day where a drawdown date requires it.
Same-day appointments available · Fixed fee from £350 + VAT · In person or by video · Regulated by the SRA
Independent legal advice — usually shortened to ILA — is advice given to somebody who is not the borrower by a solicitor who is not acting on the transaction. Its purpose is to make sure you understand exactly what you are taking on before you sign, and that you are doing it freely.
It protects both sides. You are protected from signing something you have not understood. The lender is protected from an argument years later that the security should be set aside because you did not appreciate what it meant. That is why the request comes from the lender, and why the transaction will not complete without a certificate confirming the advice was given.
The common thread is that somebody is taking on a liability, or putting up property, for a debt that is not straightforwardly their own — or is signing away a right in property they occupy.
You guarantee the borrowing of a limited company you are involved in. Much the most common reason people are sent to us, and the one most often underestimated.
Property you own is charged as security for somebody else’s debt — a company’s, a relative’s, a business partner’s.
The borrowing benefits one party and the security is over a home you both own or occupy.
You live in the property but are not on the title or the mortgage, and the lender wants your interest postponed to its charge.
An existing lender or interested party agrees to rank behind a new charge.
You are giving money towards a purchase and the lender wants confirmation that you take no interest in the property and will not live there.
The same advice is frequently wanted outside lending altogether — on a transfer of equity, a declaration of trust between co-owners, a deed of gift, or a family arrangement where one person is giving up an interest in property.
This is not administrative box-ticking and it is not the lender being difficult. It follows from a decision of the House of Lords and from the conflict rules that bind every solicitor.
In Royal Bank of Scotland v Etridge the House of Lords set out what a lender must do where there is a risk that somebody standing surety has not freely and properly understood what they are signing. The lender must communicate with that person directly, ask them to nominate their own solicitor, provide that solicitor with proper financial information about the facility, and obtain written confirmation that the nature of the documents and their practical implications have been fully explained. If those steps are not taken, the security may be set aside.
And there is the conflict point. The solicitor acting for the borrower, or for the company, cannot properly advise you. Their duty is to their client, and their client wants the money drawn down. Our duty is to you, and it may be to tell you not to sign. A solicitor acting for the borrower should not take on advising a third party where there is a real possibility that the advice would be to refuse.
Strictly, the Etridge decision concerns non-commercial sureties. A director guaranteeing their own company’s borrowing is in a commercial relationship, and a lender is less obviously put on inquiry. In practice lenders now require independent advice across commercial lending as well, because the protection is inexpensive and the consequence of not having it is a charge that cannot be enforced.
Most people signing a director’s guarantee believe they are signing a formality about a specific loan. Very often they are not, and this is the part of the appointment that takes the longest.
An “all monies” guarantee covers everything the company owes the lender now or in future, not the facility in front of you. Some are capped; many are not, and the difference is rarely obvious from the document.
The lender does not have to sue the company first, realise its other security first, or wait. It can come to you directly and immediately.
Where several directors guarantee, the lender may pursue any one of them for the whole amount and leave that person to recover from the others.
Resigning as a director does not release you. A guarantee ends when the lender releases it in writing, and not before — which catches people who left a business years ago.
Lenders commonly reserve the right to vary the terms, including increasing the amount borrowed, without reference to the guarantor.
The liability is rarely just the principal.
The practical question is a simple one: if the company fails, can you pay this? If the answer is no, the consequences run from a claim against you, to a charge over your home being enforced, to bankruptcy. That is the conversation worth having before signing rather than afterwards.
The scope follows what the courts and the Law Society expect, and the same ground is covered whether the sum involved is fifty thousand pounds or five million.
The nature of each document and its practical effect, in plain language. The extent of the liability — how much, for how long, on what trigger, and whether it is capped. The seriousness of the risk, including the possible loss of your home. What the lender can do without asking you. Your position against the borrower and any co-guarantors, including rights of contribution. What happens if the company becomes insolvent. And whether anything is worth negotiating — a cap, a time limit, a release on a defined event. Lenders will sometimes agree, and nobody asks on your behalf unless you do.
What the advice is not. We do not advise on whether the borrowing is a good idea, whether the business will succeed, or whether the rate is competitive. Those are commercial and financial questions for you, your accountant and your broker. We advise on what the documents do to you if things go wrong — a narrower question, and in our experience the one nobody else in the transaction is being paid to answer.
Most appointments happen within a day or two of instruction. We are used to bridging and development timetables where the drawdown date is already fixed, and same-day and expedited appointments are available on request — including outside working hours where a deadline requires it.
The documents you are being asked to sign, the lender’s instructions or certificate form, and the date it is needed by. Tell us who the borrower is so we can run a conflict check, and we will confirm the fee in writing.
We ask for the financial information the lender is expected to provide: the purpose of the facility, the amount, the existing indebtedness and the proposed terms. Without it we cannot advise you properly, and we will chase it if it has not been sent.
We meet you alone — without the borrower, the other director or the family member who benefits, because advice given in front of the person who wants you to sign is not independent advice. In person at our offices, or by video where the lender accepts it.
We witness your signature where required and issue the certificate in the lender’s own form. If you want time to think, you take it — nothing is signed in that meeting unless you are ready.
We give independent legal advice to borrowers, guarantors and third parties on facilities from across the market — high street and private banks, building societies, specialist and buy-to-let lenders, bridging and development finance. If your lender is not listed, it makes no difference: we are advising you, not them, and the certificate is issued in whatever form they require.
We are also happy to be added to lender and broker panels, and to take referrals directly from brokers, accountants and other solicitors.
Barclays, HSBC, Lloyds, NatWest, Royal Bank of Scotland, Santander, TSB, Halifax, Bank of Scotland, Metro Bank, The Co-operative Bank, Handelsbanken, Investec, Arbuthnot Latham, Coutts, C. Hoare & Co.
Nationwide, Yorkshire, Coventry, Skipton, Leeds, Principality, West Brom, Newcastle, Nottingham, Cumberland, Cambridge, Family, Saffron, Hinckley & Rugby, Ipswich, Dudley, Market Harborough, Monmouthshire, Bath, Suffolk, Leek, Chorley, Harpenden.
Paragon, Precise Mortgages, Kent Reliance, Shawbrook, Aldermore, Together, Foundation Home Loans, Kensington, Pepper Money, The Mortgage Lender, Fleet Mortgages, Landbay, LendInvest, Zephyr, CHL Mortgages, InterBay.
Together, Shawbrook, MT Finance, Octopus Real Estate, United Trust Bank, West One Loans, Hope Capital, Roma Finance, Glenhawk, Alternative Bridging Corporation, Avamore Capital, Aspen Bridging, Tuscan Capital, Castle Trust, Ortus Secured Finance, Kuflink, Somo, Signature Property Finance.
Development finance. Shawbrook, Paragon, Octopus Real Estate, United Trust Bank, Close Brothers Property Finance, Cambridge & Counties, Redwood Bank, Allica Bank, Assetz Capital.
Guarantees are the commonest, but the other documents carry their own consequences and are frequently treated as more routine than they are.
You are giving the lender the right to take and sell your property if the debt is not paid — even though the money is going to somebody else. Where that property is your home, this is the most serious document in the set, and it is often signed with the least attention.
You confirm that you have no interest in the property capable of taking priority over the lender’s charge, or that you postpone whatever interest you have. The practical effect is that if the property is repossessed you cannot resist possession on the basis of your occupation.
An existing charge or interest agrees to rank behind a new one. On a sale or enforcement, the postponed interest is paid only after the prior one is satisfied in full.
You confirm the money is a gift rather than a loan, that you take no interest in the property and that you will not live there. It is short, and it means you cannot later claim the money back or claim a share.
Titles are unreliable. A document called a consent may postpone a beneficial interest; a deed described as a guarantee may also contain an indemnity, which is a different and often wider liability. We work from the document rather than its heading, and we will tell you if it is not what you were told it was.
It is worth knowing in advance that this is not a service that always ends in a signature, and that a solicitor who would certify regardless would be no use to anybody.
We will not certify where we are not satisfied that you understand what you are signing, after we have explained it more than once; where we are not satisfied you are acting freely, because you have been pressed, misled or given a deadline designed to prevent you thinking; where the lender has not provided the financial information needed to advise you properly; where there is a real question about your capacity that has not been resolved; or where you have decided not to proceed, which you may do at any point up to signature.
If you decide not to sign, that is the end of our involvement. We will not report your reasons to the lender or to the borrower — only that no certificate will be issued, which is all they are entitled to know. Declining to sign carries no liability. In practice the borrower usually restructures: a cap on the guarantee, a different guarantor, more security elsewhere, or a smaller facility.
Sometimes the right outcome is neither signing nor refusing, but going back with a request — a cap, a limit on duration, a release on the sale of a particular asset, or the removal of an indemnity nobody mentioned. We will tell you where that is worth asking for, and can raise it if you would like us to.
Fixed fees, quoted and agreed before we start. There are no hourly charges and nothing that appears afterwards.
Who pays. The fee is usually met by the individual being advised, but it is frequently paid by the borrower or deducted from the facility. Either is fine — it makes no difference to the advice, and our duty remains to you.
No fee arrangement contingent on the deal. We take no fee that depends on the transaction completing. If our advice is that you should not sign, we are paid the same.
Referrals. Where a lender, broker, accountant or another solicitor refers you to us, the fee is the same and quoted directly to you.
Quoted at the outset with no hourly surprises, and appointments usually available within a day or two — including same day, and outside working hours where a drawdown date requires it.
We establish at the outset which form the lender requires, whether video advice is acceptable and whether wet-ink signatures are needed, so nothing is rejected at completion.
We take no instructions from the borrower and no fee arrangement that depends on the deal completing. If our advice is that you should not sign, that is what we will say.
Charges, occupiers’ rights, priority and postponement are our daily work. Where a document affects an interest in land, we understand what it is doing rather than reciting it.
What you tell us stays with us. The lender receives a certificate, not a report.
Advice given to somebody who is not the borrower, by a solicitor who is not acting on the transaction, so that they understand what they are signing and are doing it freely. The solicitor then issues a certificate to the lender confirming the advice was given. It is usually shortened to ILA.
Because the solicitor acting for the borrower cannot properly advise you — their duty is to their client, who wants the money drawn down. And because if the lender does not obtain independent confirmation, the security may later be set aside. It protects you first and the lender second.
Usually within a day or two. Same-day and expedited appointments are available on request, including outside working hours where a drawdown date requires it. Send us the documents and the deadline and we will tell you immediately whether we can meet it.
From £350 plus VAT per person, fixed and quoted before we start. Where two or more people are being advised on the same facility the fee per person is reduced.
Many lenders accept advice given by video with identity verified electronically, and for urgent bridging work that is frequently how it is done. Some still require a physical meeting and a few require original wet-ink signatures. We establish which at the outset so the certificate is not rejected at drawdown.
Photographic identification and proof of address, the documents you are being asked to sign, and the lender’s certificate form or instructions if you have them. Do not sign anything in advance — where a signature must be witnessed it has to happen in front of us.
That it covers everything the company owes the lender now or in future, not just the facility in front of you. Some guarantees are capped and many are not, and the difference is rarely obvious from the document. It is the first thing we look for.
No. A guarantee ends when the lender releases it in writing, and not before. People who left a business years ago are frequently still on the hook, and only discover it when a demand arrives.
Usually yes. Most guarantees are payable on demand, which means the lender does not have to sue the company first or realise its other security first. It can come to you directly and immediately.
That is the end of our involvement, and you owe no explanation to anybody. We tell the lender only that no certificate will be issued. Declining to sign carries no liability, and in practice the borrower usually restructures — a cap, a different guarantor, more security or a smaller facility.
No. Whether the facility is right, whether the rate is competitive and whether the business will succeed are questions for you, your accountant and your broker. We advise on what the documents do to you if things go wrong, which is a narrower question and the one nobody else is being paid to answer.
Where you are both signing the same document and your interests do not conflict, yes — and the fee per person is reduced. Where one of you is the borrower and the other is providing security, no: the whole point is that you are advised separately, and you would each be seen alone.
A document by which somebody living in a property, but not a party to the mortgage, agrees that their interest is postponed to the lender’s charge. The practical effect is that if the property is repossessed you cannot resist possession on the basis of your occupation.
Frequently. A lender will usually want confirmation that the money is a gift rather than a loan, that the person giving it takes no interest in the property and that they will not live there. It is a short document with permanent consequences, and worth understanding before signing.
We advise clients on facilities from across the market — high street banks, building societies, specialist lenders and bridging — and we are happy to be added to lender and broker panels. Whether we are on a particular panel makes no difference to this service: we act for you, and issue the certificate in whatever form your lender requires.
The documents you are being asked to sign, the lender’s certificate form or instructions, the name of the borrower so that we can run a conflict check, and the date by which it is needed. We will come back the same day with a fixed fee and an appointment. If the deadline is tight, say so — same-day and expedited appointments are available and we would rather fit you in than have a drawdown missed. If you are not sure what has been asked of you, telephone and describe it — that conversation is at no cost.
