Conveyancing is the legal part of the house buying process but what happens if things go wrong? If your conveyancing solicitor has made mistakes, what can you do? Michael Young, associate in the professional negligence team at Lime Solicitors, explains
Buying a house is incredibly exciting but the process involves putting a lot of trust into your conveyancing solicitor to do the right checks and to help you navigate the mountain of forms and paper work. This is supposed to leave the purchaser with peace of mind that everything is in order with their transaction.
As property is often our most valuable asset, we heavily rely on the expertise of solicitors to help ensure the process runs as smoothly as possible. This is why it is hugely distressing when mistakes are made that can lead to loss in relation to a property.
What to look out for
Always check your paperwork and ask questions if you don’t understand something or a point doesn’t sit right.
The solicitor acting for you has a duty of care to you when representing you and must carry out their work with an appropriate level of skill, but the more you engage in any process the less likely you are to be unlucky.
Failure to check the title deeds or a lease on property is a regular cause of conveyancing negligence. For instance:
1. Nature of the property – a garden may not be included as expected, or there may be issues with rights of way, causing complications with your enjoyment of the property and the value of it.
2. Restrictive covenants – when you purchase property, you may have plans to extend or renovate it, or even completely demolish it and start again.
If there is an unknown restrictive covenant on the property, you may be unable to get the necessary consent to perform such desired changes.
This is because restrictive covenants put in place an agreement which requires the buyer of the property to refrain from a specific action, such as for example, making drastic alterations to the property – potentially leaving you stuck with a property you can’t do anything with.
Alternatively there may be a situation where you do not have planning permission as required after an extension has been built.
3. Leasehold issues – If your purchase is leasehold, it is important that your solicitor establishes both the length of the lease, and the exact terms of it. Failing to do this may result in vast additional cost to you to re-negotiate the terms of the lease, or unknown complications with your property.
Other issues in addition to those arise from not properly considering title include:
4. Planning or environmental issues – If the property is located in a particularly vulnerable area, such as a near a river, and your solicitor has not obtained an environmental report of the surrounding area when you have requested one, or not advised you on the same properly, you may end up living in a flood prone area without prior knowledge. This could seriously damage your home and its value.
5. Insurance policies – Are there any issues that have or require insurance policies? For instance, where historic ownership cannot be confirmed, insurance on possessory title might have been obtained; or where there is a theoretical historic requirement to pay certain church costs, chancel insurance may be required.
So you would want to be advised if insurance policies were present or required so an informed decision on your purchase could be made.
What can you do if an issue does arise?
Often you may not realise there is an issue until say a prospective buyer raises a query years later.
Ultimately, a court claim can be pursued by issuing with the Court within six years of the point of any negligence or within three years of when you reasonably should have known about it. Thus often reliance might be on the three year rule. If moving to Court it is best to take litigation advice from a specialist solicitor.
It is important to try and mitigate any loss when a problem is realised.
A starting point for any victim is likely to be to highlight the issue to the conveyancer and their firm. Can they help resolve it? If the problem is more thorny is there a complaints process you can go through with them?
Often, once that is exhausted complaining to the Ombudsman is an option. This is a free service where a judgment can be given recommending redress. Some may find it beneficial to involve a litigation solicitor at this point.
Outside of such routes court proceedings remain the nuclear option. The Court will look to put you back into the position you should have been in but for the negligence, so any reduction in value of what your property is worth compared to what was expected is usually a good starting point for determining your likely loss.
