When buying a home, your solicitor or conveyancer has a duty to act in your interests but what can you do if they are negligent? Michael Young, associate in the professional negligence team at Lime Solicitors, explains
Home is where the heart is. So, any negligence around conveyancing or other property services can be particularly stressful as, for most people, your home is not only your most valuable asset but the family epicentre too.
Most professional negligence claims concerning property arise at point of purchase/sale, often regarding a failure to properly investigate or report on title.
A claim will potentially follow if no other professional would have provided the advice received in the same circumstances, so in other words a clear and obvious mistake has been made.
The importance of getting a trusted and experienced conveyancer appointed at the start of your transaction will go a long way to avoid unnecessary problems.
Similarly, you are entitled to challenge and check feedback, and ask for sight of things like office copies of documents related to your potential property to see if they highlight any red flags that may have been missed.
Most common issues
The most common issues in subsequent professional negligence disputes include:
– Failure to advise properly on the title. For instance, possessory title issues have been discovered at the point of subsequent sale efforts.
A possessory title is given when the owner of the property does not have the proper documentation to satisfy the legal requirements to prove they owned the property – for example, if deeds have been lost or destroyed. This can then mean the property owners cannot move on to their next home and may find they have overpaid on the original purchase for their present home
– Lack of advice regarding easements, rights of way, restrictive covenants – these can all lead to practical difficulties regarding the day to day use of your home and disputes with neighbours.
These cases can get messy – in one instance part of a dwelling was sold off triggering various rights of way issues for the retained property which resulted in injunction proceedings and police involvement.
– Lack of advice as to purpose – it may be that a property is looked at as an investment opportunity, but it is not unusual to see a lack of advice or the wrong advice given over planning permission.
Advice that planning permission would be granted, when in fact it is unlikely creates a “loss of opportunity” for developments which is costly and potentially high risk.
– Not properly carrying out the usual searches and enquiries – this can lead to inappropriate insurance cover being explored. For example, a potential issue with drainage might be missed, meaning the right insurance isn’t in place to cover any leaks.
– Failures to properly deal with registration and/or removals of legal charges/mortgages can lead to significant issues.
A legal charge basically means a debt is attached to the property related to the previous owner which needs to be removed or settled before the property is sold. Failure to spot this and remove the legal charge could see the new owners liable.
– Absence of proper advice on or in surveys and valuations – it is unfortunately common that this may lead to property being purchased when it might not have been or at a significant overvalue.
This is most common when a defect is not properly identified at purchase that should have been, and would have had a major impact on price or purchase at all.
Things you can do
What can you do if faced with your own conveyancing nightmare?
Be clear on your exact chronology and what has happened, make a record and discuss your concerns in the first instance with the professional concerned as soon as possible.
They should be keen to rectify any issue where possible and there may be a swift and straightforward solution. For instance, a missed chancel repair liability position (when you’re liable to pay a small amount towards repairs to the local church) may be rectified by insurance cover by way of example.
If problems cannot be resolved the professional should direct you through their complaint procedure. At this juncture it is important to also seek advice from a litigation solicitor, and one with specific experience in dealing with professional negligence cases.
An early conversation can be worth its weight in gold as an initial consultation can often be found for free and can help you determine whether the problem is likely to require significant legal input and set you up for that, or whether there is a more straightforward and cost-effective solution.
Make sure you check your own existing insurance if you suspect you are likely to have to pursue a negligence claim against your conveyancer.
Often, home insurance policies can carry legal expenses insurance in relation to property issues that arise, so it is also a starting point to check whether this can underwrite any fees for a legal dispute.
If not, it is worthwhile exploring no win no fee options in initial conversations, and asking about after the event insurance cover (basically insurance which can be taken out to cover legal expenses) if you are nervous about your exposure in pursuing a claim regarding your property you have been lumbered with. You are essentially just trying to get back to being in the position you expected to be in.
