What undertakings are acceptable in a conveyancing transaction?

In a property transaction, can the seller’s solicitor offer an undertaking to repay a fixed sum to a chargeholder (with a redemption statement provided) rather than an undertaking to redeem the charge?

No. The undertaking would not be compatible with our Code for Completion by Post 2019.

Section 12(ii) of the code provides that:

“when completing, the seller’s solicitor undertakes … (ii) to redeem or obtain discharges for every mortgage, charge or other financial incumbrance specified under paragraph 7 so far as it relates to the property which has not already been redeemed or discharged.”

The risk of accepting an undertaking to repay a fixed sum is that the chargeholder may change the amount required to redeem and refuse to provide a discharge if it receives a lesser sum.

The recommended form of undertaking in the code, on the other hand, puts an absolute obligation on the seller’s solicitor to discharge the relevant mortgage.

The code is part of our Conveyancing Protocol 2019 and is recommended by the Law Society.

Firms accredited to the Conveyancing Quality Scheme are expected to follow the protocol insofar as it is appropriate for the particular transaction.

Where adopted, the code should not be varied unless otherwise agreed.

You would need to be satisfied that any variation was in your client’s best interests.

For more information, see the Code for Completion by Post and the Conveyancing Protocol.