If you have purchased a property, you will either seek the advice and representation of a solicitor specialising in conveyancing or a licenced conveyancer. If you have relied on a conveyancer’s services and the advice and work done has (for example) resulted in a purchase or sale falling through or the price of the property to decrease, then you may be able to claim compensation for conveyancing negligence for your financial loss.
We are specialist professional negligence lawyers with expertise in claims against specialist property solicitors and licenced conveyancers. If you have a claim, contact our expert team as soon as possible as all litigation has strict time limits which you must adhere to.
Who regulates property solicitors and licenced conveyancers?
Licenced conveyancers are specialist legal professionals that have been specifically trained to practice property law. Solicitors can also deal with property transactions.
Legal professionals such as solicitors and barristers are highly trained and rigorously regulated by the Solicitors Regulation Authority (SRA). A high level of trust is placed upon such lawyers by their clients. If a lawyer fails to deliver the service to the standard expected of a reasonable professional in the speciality field of conveyancing, then a client has every right to bring a complaint (and court proceedings) if financial or personal loss is suffered as a result.
Licenced conveyancers are also regulated by the Council for Licenced Conveyancers (CLC), which is the specialist property law regulator. The CLC provides regulation for those conveyancers who do not practice as solicitors, but instead are specialists, who have been trained only in conveyancing. The CLC investigates misconduct, takes disciplinary action and sets training standards for licensed conveyancers.
What is the time limit for commencing a claim against a licenced conveyancer?
Time limits and limitation periods are essential to adhere to in litigation. Missing a limitation period is fatal to the chances of success of any claim and will leave a claim statute barred.
When it comes to ascertaining the limitation date for a particular claim, there are a number of factors to consider. In simple terms, the limitation period is six years from the accrual of the cause of action (section 2, Limitation Act 1980). However, if the six year time limit has passed but you have only just discovered the effect of any latent damage (for example you later realised that a restrictive covenant had not been discovered upon inspection by the conveyancer and this has only come to light), then the limitation period may be extended to three years from the date of knowledge (section 14A, Limitation Act 1980).
Another complicating factor is that in almost all circumstances, a legal professional will owe a client concurrent duties i.e. a duty in both contract and tort. This means it is up to the claimant to choose whether to bring an action in contract, tort or both. The relevance is that although both contract and tort have a limitation period of six years after the relevant cause of action accrues, in contract the cause of action accrues once the relevant contractual term is breached and in tort it accrues once damage has occurred. Therefore, limitation periods for both causes of action vary.
If you have a complaint against a property solicitor or conveyancer, then our advice is that you take independent legal advice as soon as possible.
How much is my claim worth?
Quantification of losses is a significant part of any negligence claim. It is likely that expert evidence will be required to ascertain losses (usually from a surveyor, valuer or forensic accountant). A general rule of thumb is that the starting point will be the reduction in the value of the property as a result of the negligence from the conveyancer.
How do I prove that my conveyancer has been negligent?
Significant judgments in cases against property solicitors and licenced conveyancers all highlight that three essential elements are required to prove a successful allegation against a conveyancer.
The following three elements need to be proved to the civil standard of proof on a balance of probabilities i.e. it must be proven that the lawyer’s breach in the duty owed to its’ client, more likely than not caused the client to suffer loss.
1.Demonstrate that the conveyancer owed you a duty of care: the boundary lines between when a tortious duty of care is owed or not owed is subject to tests that are being continuously adapted by the courts. It is safe to say that a duty of care exists where the conveyancer can be shown to have objectively assumed responsibility (and the courts have demonstrated increasing willingness to find that a conveyancer is liable to whomever reasonably relies on their advice). Once a conveyancer accepts instructions and you have signed the client care letter, a contractual duty of care will likely be found within that document.
2. Establish that the conveyancer has breached the duty of care owed to you: proving breach will obviously vary depending on the individual circumstances of the case. A claimant needs to demonstrate that the breach shows that the conveyancer fell below the standards of a reasonably competent property conveyancer. The particular level of experience of the coveyancer or property specialist solicitor (from newly qualified trainee solicitor to highly experienced partner) is not relevant- inexperience is no good argument to persuade the court to lower the standard of care. However, if a lawyer or firm hold themselves out as specialists in an area (for example solicitors specialising in conveyancing), then the court will hold them to standard of reasonably competent specialists of conveyancing law.
3. Prove that the conveyancer’s breach caused loss to you: you must prove both factual and legal causation. The test for factual causation is that “but for” the breach you would not have suffered loss, for example if a limitation date and as a result your claim becomes statute barred and you lose the chance to substantial damages in the substantive claim, factual causation is demonstrable because “but for” the solicitor’s negligence you would still have a claim that was not time-barred and still have a chance to achieving damages. Legal causation must also be proved i.e. the loss must be reasonably foreseeable at the time when the relevant duty was breached.
Examples of negligence by a licenced conveyancer
- Coveyancer fails to properly check title deeds, official copies of title;
- failure to recognise the existence of a restrictive covenant;
- negligent negotiation of restrictive covenant insurance; for example on discovery of the restrictive covenant, the conveyancer alerts the person with the benefit before seeking restrictive covenant insurance;
- failure to spot any physical or latent defects;
- failure to do the proper checks e.g. failing to notice that the seller of the property had failed to get planning permission, building regulations, listed building or conservation area consent;
- problems with rights of way e.g. the right of way is not appropriate for the buyer’s needs;
- failure to make further enquiries following seller’s replies or property search results;
- drafting incorrect provisions in the sale deed or contract;
- acting without authority or not properly adhering to instructions from the buyer or seller client;
- failing to give proper advice on a surveyor’s report.
Case Study: Successful claim against property solicitor for failing to advise on user covenant
The client sought advice from a specialist property solicitor regarding the purchase of a house overlooking the English channel. The client made it clear to the solicitor that she wished to purchase the property, then carry out major extension works following which she planned to let out part of the property to tenants.
However, the property solicitor breached the duty owed to her by failing to advise on a user covenant that had been put in place 20 years previously by the neighbours (and former owners of the property) which prevented any change of use or external alterations without their permission.
The judge found that the property solicitor had been negligent and ordered the firm pay the difference between the price the client paid for the property and its then market value (i.e. the difference between the purchase price and distressed sale).
Book an Initial Consultation with our Professional Negligence Lawyers
Do you have a claim against a professional? If you want expert legal advice, do not delay in instructing us so we can assess the legal merit of your case.
We can often take on such claims on a no win no fee basis (such as a Conditional Fee Arrangement) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.
Our expert legal team of leading Professional Negligence Solicitors & Barristers can provide urgent help, advice or representation to you. Just call our Professional Negligence Lawyers on 02071830529 or email us now.
Instruct Specialist Professional Negligence Solicitors
We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss. We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, surveyors, valuers, architects, tax advisers and IFAs.