In the current booming property climate it’s never been more essential to have a reputable solicitor on hand to ensure there are no hidden impediments lurking beneath the surface. But how do you know the advice is sound and not negligent? Michael Young of Lime Solicitors explains
Buying or selling a property can be complex and sometimes stressful, made worse if you receive negligent advice from a conveyancing specialist.
A conveyancing solicitor should look to ensure all the legal considerations and potential issues are covered before the sale of a property goes ahead.
This is supposed to leave the seller and 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.
Right up to completion of the sale, there is the opportunity for things to go wrong or missed, which is why the work of a solicitor is key in avoiding mishaps which could have serious financial impacts.
For instance, when a negligent solicitor fails to uncover vital things about a property, it can leave the purchaser at a big loss.
We have even seen in the news recently 12 property owners have been compensated by the Solicitor’s Regulation Authority after two solicitors processed conveyancing transactions within a “quick sale” property scheme.
The scheme, Speedy Property, is being investigated, and the solicitors too are subject to investigation, after sellers received only a fraction of the property sale money.
Whilst reports may highlight further investigations that may raise questions beyond negligence, the story provides a useful reminder for negligence in a conveyancing context.
Vital checks
Here some key factors your solicitor should be looking out for and checking on your behalf when carrying out the conveyancing process.
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.
Leasehold properties
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.
‘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.
Building certificates
When a property has an extension, or any significant building work on it, the house owner should obtain a completion certificate from the local buildings council to confirm that it has been finished to the required standard of safety.
If you inherit a property that does not have such a certificate, you may be required by law to remove or alter the building work which can prove to be expensive.
If your conveyancing solicitor has failed to inform you there is no building regulation certificate on the property, they may have been negligent in their duties to you.
Rights of way
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.
Boundaries
One of the core features of conveyancing is the inclusion of a title plan showing the extent of the land in question by ‘red edging’. When buying a property, it is important to make sure the physical boundaries match the boundaries shown on the title plan, or you may not end up with what you thought you were buying.
Explanation of legal documents
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.
Making a claim
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 – you may then rely on three years from date of your knowledge (when you reasonably should have known) subject to a 15 year longstop. However, it is important to seek legal advice as early as possible to avoid any issues with limitation dates.
The importance of proper and reputable legal advice from the outset is not to be underestimated, both in conveyancing to try and avoid any issue in the first place and then if in the worst case if you do think an issue may have arisen then with early professional negligence advice.
If you are unsure about anything either before during or after a transaction, the best thing to do is always to ask your solicitor and address matters early and transparently.
Michael Young is legal director at Lime Solicitors
