Specters Solicitors deal with a vast number of claims against conveyancing professionals every year. Although the process of conveyancing can be uniform, repetitive and transactional, the large sums of money in play mean that even the slightest of mistakes can result in a large financial loss and in turn a potential negligence claim.
Instruction
The duties of the conveyancer start from the moment they are instructed by their client.
At the start of the conveyance, the conveyancer needs to confirm the identity of their client. If they act for two or more owners, the conveyancer needs to ascertain the instructions of each owner, that the owners have a common intention and that the instructions are not likely to result in a conflict of interest between the parties.
Generally, a conveyancer should not act for a buyer and seller due to significant risk of conflict of interest. Specters Solicitors have successfully acted on a case where a solicitor inadvertently and impliedly acted for both parties in a transaction and in doing transferred legal title from one party to the other, when they were not authorised to do so, which amounted to negligence.
A conveyancer may also be instructed by the buyer’s lender. In this circumstance, the conveyancer often acts for both parties. However if a fact arises in the buyer’s transaction which is adverse to the lender’s interests, such as buyer’s risk of bankruptcy, the conveyancer may need to terminate their instruction with the lender due to risk of breaching their duties of confidentiality with the buyer.
Pre-Exchange
Due to the doctrine of caveat emptor in the law of England and Wales, there is significant emphasis on the conveyance to carry out all pre-contract searches as well as scrutinise the seller’s property information form, fixtures and fittings form, contract pack and the title documents held by with HM Land Registry. Pre-contract searches include a local search, drainage and water search, bankruptcy search and company search, and search of index map.
The conveyancer should cross reference the search results and information provided by the seller. If inconsistencies arise, they should raise requisitions with the seller’s solicitor and follow up all enquiries to ensure they are answered to make sure that the buyer is purchasing the property as advertised.
The conveyancer should provide their findings to the buyer in a Report on Title, which sets out all defects and provides sufficient advice for the buyer to make an informed decision as to whether they should continue with the purchase or not. The Report on Title should be in clear terms that a layperson can understand.
It is important that all issues are identified and advised upon, as once exchange has taken place, the buyer could lose their deposit funds if they default due to an issue that was discoverable pre-exchange.
The conveyancer should also advise the buyer to visit the property to assess for physical defects as well as instruct a surveyor. There is no obligation on the seller to disclose patent defects, which are defects obvious on inspection.
The buyer’s solicitor must also advise the buyer to take out an indemnity policy if any issues arise with the condition or title of the property, and property insurance to protect the property in the event of damage occurring from the date of exchange, as the risk of the property carries over from the seller to the buyer on exchange.
If this has happened to you, you may be able to claim for losses from your conveyancer if it is established that the losses were due to their error or omission.
Specters Solicitors have acted on a vast number of conveyancer negligence claims and are therefore more than equipped to advise you in relation to a negligence claim against your conveyancer and any other options you have from the point of the first call.
Please do not hesitate to give us a call to speak to us about your options today. The conveyancer is also obliged to carry out a number of tasks post-exchange of contracts to ensure the property still has good title and everything is in place in time of completion to ensure their client is able to complete on time. In our next article we will discuss some of the issues that can arise after exchange of contracts, up to the point of completion.
