The rush to beat the stamp duty deadline has meant conveyancers are now under huge pressure to complete their work. Michael Young gives the heads up on some of issues which may be overlooked and offers advice on how to proceed if a mistake is made
Buying or selling a property can be complex and sometimes stressful, made worse if you receive negligent advice from a conveyancing specialist.
Risks for new homeowners are heightened by the fact conveyancers are under huge pressure to beat expiry of the stamp duty deadline and hence it is more likely for issues to slip through the net.
Issues might include:
1. Missed 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 planning permission 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 making drastic alterations to the property.
This might leave you with a property you would not have purchased, had you previously been aware of such restrictions.
2. Failing to inform over leasehold issues
Property is usually sold on either a freehold or leasehold basis. If you own the freehold, you own the building and the land it stands on outright, as opposed to leasehold which means that you just have a lease from the freeholder (sometimes this is the landlord) to use the home for a set number of years.
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 costs to you to re-negotiate the terms of the lease.
3. Failure to investigate good title
The investigation of ‘good’ title involves establishing whether the seller of the property is legally able to transfer the property to the new owner, as well as looking into whether there are any defects in that title that would adversely impact the buyer’s interests.
For example, the solicitor will need to examine each deed to the property to ensure that there are no hidden rights to the property that could affect the new owners.
4. Missed easements
An easement refers to the existence of a right of way through a particular part of land. For example, someone may be granted the right to a pathway through the garden of a property, meaning that they have the right to use it when they please.
Your solicitor should report to you any easements over the land you are buying. If they did not and you have discovered one, this could amount to conveyancing negligence.
5. Conveyancer gave incorrect/no advice regarding meaning and effect of a contract/transfer/deed
A conveyancing solicitor should explain exactly what each of the legal documents are and the processes involved with each, as well as the effect the legal process will have on you.
For example, the deeds of a property relate to the chain of ownership for land and property and are vital for owning and later selling a property.
The above is by no means a complete list of issues that might arise and is intended to give a snapshot as to how issues might arise.
If as a new homeowner you think a mistake has been made by your conveyancer in the first instance it is best to speak to them. It may be easily corrected. Where there is a more fundamental issue, you can then go through their complaints procedure.
Handling a dispute
If dispute remains speaking to independent solicitors such as Lime Solicitors as soon as possible can help ascertain if there is a proper professional negligence claim to pursue.
Each claim is different depending on the circumstances of the conveyancing negligence. As a general rule, your compensation level will be to try and put you back in the position you should have been in had the negligence never occurred.
To make a claim for solicitor or conveyancing professional negligence, you must be in time, which is known as the ‘professional negligence limitation period’.
Generally, if your solicitor has failed to perform to the professional standards required of them, and you have suffered damage or loss as a result, you have six years from the date of the negligence occurring.
There can be exceptions to this time limit, for example if you were not aware of the negligence until a later date. However, it is important to seek legal advice early so as to avoid any issues with limitation dates.
Michael Young is a legal director in the professional negligence team at Lime Solicitors
