If the negligent act of a conveyancing solicitor or licenced conveyancer causes you financial loss during the sale or purchase of a property, you may be eligible to file a claim for conveyancing negligence. In this article, Professional Negligence Conveyancing, we consider the process and mechanism involved.
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What is conveyancing?
The conveyancing process is essential when purchasing or selling a property. It is the legal procedure by which a seller transfers property ownership to a buyer. Typically, it begins when an offer is accepted and concludes when the transaction is closed.
This entails conducting inquiries and investigations concerning the property to determine whether there are any issues that could affect the transaction. Checking the extent of the property to be transferred, whether a third party has any rights over the property, whether there are any restrictions on the use of the property, confirming current ownership with the Land Registry, determining whether the property has planning permission and building regulations approval, assessing the risk of flooding; and determining whether there are any development plans that may affect the property are all part of the due diligence process.
What is professional negligence?
In general, professional negligence occurs when a professional fails to fulfil his or her duties to the required standard. A claim may be founded on any of the following:
- Breach of an express or implied contractual term
- Breach of the duty of care owed in negligence, a tort
- Breach of fiduciary duty
- Breach of a legal obligation
Depending on the circumstances, these claims may be initiated by the professional’s client, but third parties may also be able to sue the professional.
Professional negligence is a component of negligence under English tort law. This is a common law legal system, which is a branch of the law that imposes civil liability for obligation breaches.
Professional negligence occurs when someone causes loss to another person as a direct result of their own neglect or recklessness, or when a substandard service results in loss or damage.
What is conveyancing negligence?
There are numerous situations in which a conveyancing solicitor may be negligent, including:
A conveyancer neglected to inform you that the property, or a portion of it, is not in the seller’s name
The inclusion of a title plan with “red edging” indicating the extent of the land in question is a fundamental element of conveyancing. When purchasing a property, it is essential to verify that the property’s tangible boundaries match those depicted on the title plan; otherwise, you may not end up with the property you expected.
A conveyancer has overlooked rights or easements
The existence of a right of way through a particular parcel of land is referred to as an easement. For instance, someone may be granted the right to a pathway through the garden of a property, allowing them to use it at their discretion. Your solicitor should inform you of any easements on the land you are purchasing. If they failed to do so and you uncover one, this may constitute conveyancing negligence.
A conveyancer neglected to bring up planning or environmental concerns
If the property is located in a particularly vulnerable area (such as near a river) and your solicitor has not obtained an environmental report of the surrounding area, you may unknowingly end up living in a flood-prone area. This could severely harm your home and its value. It is crucial that a conveyancing solicitor informs you of the vulnerabilities of the surrounding area. This could include land instability, the presence of chemicals, and other unwelcome issues that may also be present.
A conveyancer failed to account for restrictive covenants
When purchasing a property, you may intend to extend it, renovate it, or even demolish it and start over. If an unknown restrictive covenant exists on the property, you may be unable to obtain planning permission to make the desired modifications. This is because restrictive covenants establish an agreement requiring the buyer to refrain from taking a particular action, such as making radical changes to the property. This may leave you with a property that you would not have purchased had you been aware of these restrictions beforehand.
A conveyancer has not informed you of any tenure issues
Typically, property is transferred as either freehold or leasehold. If you own the freehold, you own the building and the land it sits on outright, as opposed to leasehold, where you have a lease from the freeholder (sometimes the landlord) to use the residence for a set number of years. If you are purchasing a leasehold property, it is crucial that your solicitor determines both the lease’s duration and its precise terms. Failure to do so may result in substantial additional costs to renegotiate the lease terms.
A conveyancer did not investigate a Good Title
The investigation of “good” title entails determining whether the seller of the property is legally able to transfer the property to the buyer, as well as determining whether there are any defects in the title that could negatively affect the buyer’s interests. For instance, the solicitor will need to examine each property’s deed to ensure that there are no concealed rights that could affect the new owners.
A conveyancer neglected to inform you that there is no building regulation certificate
When a home has an extension or substantial building work, the owner must obtain a completion certificate from the local building council to certify that the work has been completed to the required safety standards. If you inherit a property without this certification, you may be required by law to remove or alter the construction, which can be costly. If your conveyancing solicitor neglected to inform you that the property lacked a building regulation certificate, they may have breached their duty to you.
A conveyancer acted without authority, including from a co-owner
It is required by law that all co-owners consent to the property’s sale if it is held in joint tenancy. If one or more parties were not consulted, this could have severe repercussions, including court proceedings and complications regarding the legal ownership of the home.
A conveyancer provided inaccurate or no advice regarding the meaning and consequence of a contract/transfer/deed
A conveyancing solicitor should explain precisely what each legal document is, the processes involved with each, and the impact of the legal process on you. The deeds of a property, for instance, pertain to the chain of ownership for land and property and are essential for owning and subsequently selling a property.
How can I prove a professional negligence compensation claim?
If a duty of care and skill was owed, your case must establish that an error was made that no reasonable member of the profession would have made under the same circumstances.
To support your claim, you will need to provide evidence from a specialist in the field in which the professional failed you. This expert testimony is typically a report compiled by another professional, and it seeks to emphasise the correct advice and/or conduct that should have been followed. The expert’s testimony will also attempt to clarify what, in the expert’s opinion, a reasonable professional would have done in the same circumstances.
The measure of skill and care in a contractual claim differs slightly from that of a tort claim, in that the case seeks to establish what would be considered reasonable skill and care. In contrast, the standard for a tort claim is an objective test that determines what a reasonable man would expect.
Is there a deadline for filing a claim?
Yes. As with all claims of professional negligence, you have six years from the date of the negligence to file a lawsuit. If you discover the negligence later, you have three years from the date you discovered it (or until the end of the six-year period, whichever is later) to file a claim. There is a “longstop” limit of 15 years from the date of the negligence, barring certain unusual circumstances.
How we can help
We have a proven track record of dealing with professional negligence claims against conveyancing solicitors. We will guide you through the process and ensure all checks are carried out swiftly and efficiently. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
Please click here to find out more about our Commercial Litigation services.
How to contact our Commercial Litigation solicitors
It is important for you to be well informed about the issues and obstacles you are facing. Expert legal support is crucial in terms of reducing risk, saving you money and ensuring you achieve a positive outcome.
To speak to our Commercial Litigation solicitors today, simply call us on 0345 901 0445, or allow a member of the team to get back to you by filling in our online enquiry form. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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