Re: Declaration of Trust - Hybrid Agreement
- From: stevewalker153@xxxxxxxxx
- Date: Thu, 3 Jul 2008 17:53:54 -0700 (PDT)
On Jul 4, 6:34 am, SB1 <SB1.2b31...@xxxxxxxxxxxxxxxxx> wrote:
Hello
I'd really appreciate a view from anyone in the know.
In summary, in April I bought a property with a friend, and paid
(upfront to get a discount) a recommended (and supposedly award
winning) provincial property law firm to create a legal agreement to
recognise the split of equity, finances and usage of the property
between the parties.
The base template was a stock "Declaration of Trust" which set out the
financial input and equity split of the property between the parties.
However, I also asked the lawyer (in writing, from the outset) that I
wanted to expand the agreement and include various other clauses
covering the responsibilities and indemnities for each party to pay
certain running costs, term of the agreement, termination, post
termination events (inc exclusive right to buy out the other party) and
a couple of simple schedules setting out the "terms of co-usage /
occupation" of the property.
I got a first draft back from the lawyer after several weeks, which was
a partial hybrid as above, and included some of the other elements not
just the basic out of the draw "Declaration of Trust". But it was
missing a lot of key points, had many errors, and was pretty shoddy in
layout.
Having scoped the commercials, negotiated and worked on the drafting
(with my legal counter-parts), many, many complex business legal
contracts in my profession over the years, I decided rather than e-mail
back comments, to OCR scan the v1 draft, and correct the errors and add
the missing detail and the schedules / annexes and tidy it up. Then
e-mailed back the revision marked draft to the lawyer for his final
comments, which I expected to be minimal, with a view to then printing
and executing the agreement with the other party.
After a months wait I get a reply from the law firm, which cutting
through a lot of petulant waffle and obvious umbridge at being "red
penned" by a lay client, there were only 2 very minor drafting issues
with my amendments, which I corrected in 60 secs.
HOWEVER, the lawyer suddenly stated that he's not even sure it's
legally binding to include the points re split of payments / financial
indemnities between the parties and the usage of the property, as a
Declaration of Trust is an agreement purely to do with split of
ownership of the property and equity by the party or their estate, and
that I should simply accept his first draft, or the firm effectively
washes its hands of my v2 and couldn't be held responsible for any loss
due to executing the v2!!!
I was flabbergasted and furious. Not to mention bemused, as his v1
draft was already well down the road to being a hybrid agreement.
Before I revert to him I wanted to get a view of whether he is talking
nonsense or if there is the basis of a point here. Surely any coherent
agreement, provided it falls within the aegis of UK law, makes sense,
is clear, logical, and agreed by both parties is legally binding even
if it is not some stock boilerplate out of the bottom draw of a lawyer
clearly wanting to just knock out vanilla agreements and not get
embroiled in and bespoke contracts.
However, that's what I stated I wanted in writing from the outset, and
he commenced down this path, then has turned the tables and said he
believes it may not be valid, (but he's actually not 100% sure), as
it's no longer a simple Declaration of Trust stating ownership split in
property, but merges the principles of a joint tenancy agreement into a
single contract.
Any views much appreciated.
Cheers
SB
--
SB1
Are you mad, or having us on?
.
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