When is a bogus legal firm not a bogus legal firm?

We operate in a world in which we are constantly exposed to criminal activity undertaken by sophisticated crime syndicates, normally based outside the country.   There are several different types of crime and the type of scam is constantly evolving.  There is a need for both professionals and consumers to be on guard and to be educated to spot the true scam attempts and to know what to do when one is identified. 

A scam is a type of fraud that criminals use to trick both professionals and the consumer  into giving up money and personal details. Sometimes criminals will use the names of law firms, solicitors or other individuals regulated by us to make their scam seem genuine, either with or without their knowledge.

Scams can take the form of unsolicited emails, text messages, telephone calls or direct mail. Emails sent can also contain viruses some of which are designed to allow the criminal to gain access to your computer with a view to obtaining personal details of clients, bank details and other confidential information. Alternatively the criminal take control only agreeing to release the captured data in return for a ransom payment. 

One type of email is an email sent from an address which is not specific to the purported sending individual or firm but which purports to be from a member of a legitimate legal firm.  Its this particular email which seems prevalent and which is now proving to be a daily occurrence.  All one needs to do is to look at the Solicitor Regulation Authority Scam Alert Register to see how many of these are happening each week.  

My question is that should this type of email, which is not by any means a sophisticated scam, be viewed as one which is reportable and allowed by some independent third party holders of this data, to suggest or imply that the ‘victim’ business may have in some way brought about the scam or is associated with it. 

I say this is not a sophisticated 'scam' because to create an email address and to then add a simple signature strip to pretend the email has come from a particular legal practice does not involve very much ingenuity. It takes no longer than a a couple of minutes and to be able to send this out to other lawyers involves nothing other than a perusal of Find a Solicitor website.  As I say not rocket science. 

I have first hand knowledge of this since my business was reported to the SRA and has also as a result of the incident, had a “notice’ added alongside our name on a data base held by a well known commercial solicitor checking service. 

The email had an attachment  and was sent to a number of legal firms and was sent not from a clone of our business email address but rather from a personal email address.  This was very clear and all that the email had which related to our business was the name of our business in a typed signature strip.   The email was clearly a fake and unless the professional person receiving it has lived on a different planet  for the past year or so, it should have been abundantly clear that the email was ‘spam’ at the very least, and should be deleted. 

Our only connection to the email was the use of our name within the body of the email. 

Notwithstanding this we were required to report it the SRA and as mentioned anyone searching our name on the SRA website and the third party database will see that we are associated with what should have been labelled 'spam' rather than 'scam'. 

Not happy with this, we lodged a complaint with the SRA and wrote to the third party verifier.  Despite these efforts we still have the 'scam' associated with our business and this has meant that from time to time we are required to defend ourselves when other businesses  contact us enquiring about what happened and making sure we were in no way involved in the 'scam'. 

My question is that should all types of spam be regarded as reportable, or is it reasonable to expect most lawyers, using both common sense and a degree of intelligence, to differentiate between a poor and pitiful effort to 'scam', as was the case here, and the more serious type of scam.   Is there not a fear that by reporting everything that might look to be a scam ( whether it is or not ) the real and more damaging scam will become less visible to detect?

The argument advanced from the third party verifier is that ‘sadly not everyone spots the obvious and people are conned by emails purporting to be from legitimate firms when they are not’.

It also claims that the credibility of those businesses who appear to have been held ‘guilty’ for no reason other than association has not been affected by this type of scam.  Its also argued that if someone purports to be you then you have a moral if not professional duty to warn your clients and other firms to ensure that they are not misled by criminals.

Fair points.  However, the email in question was not directed at the consumer, it was an email which was being sent purportedly on behalf of our business from an email address which did not even feature our business name within it.   The ‘red flag’ points within the email were clear and obvious. If the email address was a clone of our email address then yes we would have had a moral and professional duty to warn, but this was not the case. 

Surely after all of the publicity and professional guidance issued over the past year or two,  has the time not come for the SRA and commercial scam data base holders and publishers to be more discerning in the reporting and labelling of scam attempts.   On this note, the third party company has refused to remove the notice registered against our name or to put an explanatory note against it. 

By having this blot on our copy book through no fault of our own we do face the prospect of suffering damage to our reputation due to risk of other businesses dealing with us taking the view that we have been the subject of a genuine ‘bogus solicitor' attack when clearly we have not.  I raised this with the third party data collector and publisher and was told this was nonsense.  I have not take this any further but it would be interesting to take an opinion on whether the publisher of data which is capable of giving a misleading image of a business can be held accountable for any loss arising. 

Hopefully those reading this will not consider that I am looking to undermine the fight against fraud.  On the contrary  I am saying that unless we can when receiving data be able to filter and correctly categorise the incidents there is a real danger that the profession will start to switch off to the threat due to the the overwhelming number of reports and warnings issued. 

David Pett   

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

Japanese Knotweed - A Case for Revising the Property Information Form

By Ben Pett - Trainee Solicitor

In recent years the subject of Japanese Knotweed has received a relatively significant amount of media attention. Far removed from the common garden weed, its rapid rate of growth has helped earn it the label as ‘the UK’s most aggressive, destructive and invasive plant’ (Environment Agency).

Failure to control it can land you with a fine and an ASBO, while in March 2014 an individual’s ‘paranoia’ surrounding the presence of the plant on his property, was widely reported as a motivating factor behind both the tragic murder of his wife and his eventual suicide.

The plant has certainly acquired quite the reputation for itself, but just how much of it is media hyperbole?

While it is estimated that only 1% of UK properties have been affected, the impact of it on a Conveyancing transaction can be extremely detrimental to sellers, purchasers and lenders alike.

Property Information Form: Third Edition

When the Property Information Form (TA6) was revised in 2013, it was drafted to include a question about the plant. Now, as sellers and their conveyancers will know, at question 7.8 it states the following:

“Japanese knotweed is an invasive plant that can cause damage to property.  It can take several years to eradicate.”

It then asks sellers: “Is the property affected by Japanese knotweed?”

The choice of answers a seller can select are ‘yes’, ‘no’ and ‘not known’. It is at this point, the actual worth of raising this specific question can be debated.

‘No’

For the vast majority of sellers, the selected response will be ‘no’. But, there is a very marked different between a categoric ‘no’ based on a certain level of understanding, and merely stating ‘no’ because it has not yet been encountered by the vendor.

Any representation about a property can of course have legal repercussions if the information is intentionally misguiding. If representing a seller there is very little you can do if this is the case, but

what can be done to ensure that clients are not making firm assertions without sufficient knowledge?

To avoid such uncertainty it could be advised that seller should add a caveat along the lines of: ‘as far as I am aware’ to a response of ‘no’. This stems from how the plant can be hard to spot in its early stages. After all, most property owners are not horticultural experts.

‘Not known’

This response can serve to trigger alarm bells when reviewed by the purchaser’s solicitors. A request, via an enquiry, is likely to be made for further information and perhaps a specialist survey .

Indeed, this emphasises the issue with the current structuring of the question on the form currently. The ‘not known’ answer is arguably the most honest for the majority of sellers, but in reality it serves only to prompt the buyer’s solicitors to probe for further information.

From a sales perspective, it may be advisable to seek clarification from the client when reviewing the Protocol Documents if this response is selected. Again, a caveat along the lines of ‘buyer should rely on their own survey’ is to be recommended.

If this is the case, however, it is difficult to see just how the form has helped clarify matters at all from the perspective of clients or solicitors at the onset of a transaction. 

‘Yes’

From a conveyancing perspective this is clearly the most straightforward response. If representing the vendor, it is imperative to ensure the client has taken action. A specialist contractor will be required to treat the affected areas, with the form requesting a copy of the management plan detailing the record of works carried out.

Sellers should provide this to the purchaser’s solicitors, who in turn should enquire to see if it can be transferred to their client and whether or not it is backed by insurance.

Of course, if representing a purchaser the lender cannot be ignored. The presence of Knotweed does not automatically prevent a mortgage from being obtained, with a case by case basis approach often adopted. Evidence of treatment is once again key, as is ensuring remediation works have an insurance backed guarantee.

The presence of the plant at neighbouring properties has also deterred certain lenders, but note this is not something the seller is required to disclose on the Property Information Form. This again limits the value of the form in this particular area, with once again buyers directed towards ‘their own searches’.

A case for change?

By including Japanese Knotweed in the TA6, its potentially devastating impact is at least being acknowledged. As things stand, it is perhaps not addressing the issue from the right angle.

A simple amendment to create a choice of ‘yes’ or ‘not as far as I’m aware’ would reduce ambiguity. Property owners who are aware of it affecting their property would benefit from transparency, which is a clear strong point of the form. But those who are not aware, would not have to make assertions about the presence of a plant that they perhaps are not qualified to make.

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at david@mjpconveyancing.com

Open Letter to the President of the Law Society - Conveyancing Fees

Open Letter to the President of the Law Society - Chancery Lane, London

Dear Sir,

I am a practitioner who manages a practice which provides residential conveyancing services to clients nationwide.  

I have over the past 5 years worked hard to introduce efficiencies as well as measures to combat the increasing risks which continue to arise.  Much of the work has centred around the development of an ‘in house’ risk and case management system.  I along with my co-directors have invested a large amount of time and money to ensure we have a business which can compete with larger conveyancing practices and which more importantly can offer our clients a safe and efficient service.  It has not been easy and apart from an understanding Bank we have had no help or support whatsoever  from the Law Society or any other body.  

Instead we have had to adjust and  show complete flexibility to accommodate the ever increasing flow of regulatory and compliance hurdles thrown our way.   As conveyancers we are required to fund not only our own overheads but also the cost of money laundering checks and the long list of statutory and  other compliance requirements.  Indeed we have had to employ one person who spends all of her time watching out for changes and making sure these are applied within our practices. Tracking as we do the number of hours we spend on each type of transaction it is clear that the hourly rate we receive from providing a good and reliable service is barely above that paid to our office cleaner! 

It never gets any easier, and indeed  if there is at the end of the day any profit left  within a conveyancing transaction it is almost lost in discharging these obligations and taking out PII insurance.  The  financial pressure this imposes is highlighted in a an article which appears on your Small Firms Division website written by Mark Carver : ‘Conveyancing - is the reward worth the risk?’

In this article  Mr Caver makes the following salient observations:

‘In real terms, solicitors are earning less now than they did 10 years ago from conveyancing, with average fees increasing by 36.5 per cent – significantly less than standard inflation for the same period (40.63 per cent). This is in stark contrast to estate agents, who have clearly benefited from the increase in property prices as their earnings are linked to the sale price, and to a lesser extent, surveyors, whose fees have increased above the level of inflation’

‘Not only are solicitors getting paid less for conveyancing than in 2004, but the potential risk is significantly higher, driven primarily by an increase in property prices’

‘Even firms fortunate enough not to experience a conveyancing claim should be aware that approximately £100 of an average conveyancing fee will contribute towards professional indemnity insurance premium for the transaction’.

These are findings which do not come as a surprise but are still nonetheless alarming and must on any interpretation be viewed as a stern warning.   Unless something is done, and done soon, to address the imbalance between fee income and the increasing risk,  high street conveyancers like ourselves will, despite our efforts, be condemned to history. 

Its shocking that through inactivity and unnecessary distraction in projects like Veyo the Law Society has allowed this situation to continue  unaddressed for so long.   The time has now come for action to be taken to reverse this trend and to make sure that conveyancing is not seen as a worthless and inferior profession.  

So some questions for you to answer please.

How much has the Law Society invested in Veyo?

Was any thought given at the time Veyo was conceived about spending the money on forming a strategy to  see how the difference in value attached to the fees of a professional conveyancer and those of estate agent and other  property professionals could be addressed? 

Why is that as a profession  our indemnity insurance is one of the highest when compared to other professionals?

Do you consider  the Law Society has discharged its duty to its members by failing to protect its members who undertake conveyancing  from suffering a severe erosion in the level of their fees at a time when the burden of compliance and other risk management has increased substantially?

Finally, what do you intend to do to make sure action is taken to address this concern?

Yours, 

Do we really need conveyancing awards?

We are about to enter the season of conveyancing awards and in this article I consider the question of whether we should view this as ‘silly season’ or a season to recognise and celebrate the success of those who are held out to be to be best conveyancers in the Country. 

I must start by admitting that I was persuaded last year to enter my business into one of the national competitions.  I was reluctant to do so but decided  I had nothing to lose apart from some time and a relatively small entrance fee.  

Surprisingly we  were shortlisted for a prize and our expectations were raised  but only to be dashed on the day of the awards when speaking to others at the awards dinner that we were told  that  we stood no chance whatsoever  of winning.  This naivety was soon revealed as correct when the winners were announced.  It seemed the seasoned entrants had an uncanny skill of predicting the winners!

Not to  be deterred and having a stubborn streak to prove everybody else wrong we entered the same competition this year and as secretly anticipated on enquiring ( and  after having received no prior notice ) we were told that we had not made the shortlist.  

So how are the ‘winners’ chosen?   

One might expect there is a call out of the blue to say your business has been nominated by a number of satisfied clients and you then turn up at the awards ceremony to see if you have won.   Not quite.   Instead you have to sign up and pay a fee.  You then have to complete an application form to say how fantastic you are and why you consider you should win the award.  This is then followed by a telephone interview involving an interviewer who has the status of a conveyancing expert.  You are asked questions and are rated on your performance.  There then follows a ‘secret shopper’ call.  Its only one call so if your new business team are not on the ball on that one occasion you will lose points. The experts then meet to choose a winner.  The experts are chosen by the organisers and come from various different areas of the conveyancing spectrum. 

A simple format and one that can be easily manipulated especially if you are fortunate to have a good PR team on hand.  A team that can help you with the application form and can brief the partner or director who will be involved in the interview. As for the mystery shopper, most businesses are good at getting new work in and whether or not the response to the mystery shopper is good or bad it really is not the most informative means of assessing the ability or otherwise of the business to undertake conveyancing work. 

This leads me to the question - how can you objectively conclude that one business is better than all of the other businesses if a) not all of the other businesses enter, and b) there is no engagement with the clients who must clearly be in the better position to express a view on the level of service offered. I acknowledge that the assessment carried out can help to see if a business is focused and committed to providing a quality service but its hardly a means of identifying a business which offers a quality conveyancing service better than others in that particular region.  There is a difference. 

At the end of the day the question one must ask is does it really make any difference or indeed matter who wins these awards.  Can those who come away with the kudos of an award say with any validity that it has led to an increase in work.  Most clients these days are won at grass root level, recommendation and or price.  Saying you were the regional winner of some national award from a company which has no meaning whatsoever to the consumer is unlikely to have any real influence.  Its about pride and the massaging of egos and nothing else. 

So if Heineken was running an awards ceremony how would they approach it.   On a practical level it would probably prove problematic.   My view is that a criteria based on client feedback, efficiency and staff morale levels would be a good start.  Being a good conveyancer is not about how well your PR machine might be, its about efficiency, speed, safety in terms of compliance and client satisfaction. 

As long as there are egos around there will always be companies around to exploit that hunger for recognition and for that reason the phenomenon of winning awards will always be an attraction.  For those who work hard, make a decent profit from efficient processes and who know from feedback that clients are happy and are returning, the message must be carry on as you are and do not lose sleep when you next read about business X winning a national conveyancing award.   

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Construction, Design and Management Regulations 2015 - Practical Implications for Conveyancers

Conveyancers should be alert to the Construction, Design and Management Regulations 2015 (became law on 6^th April of 2015) when considering recent alterations to both freehold and leasehold property.

If your client owns, uses or manages a building and undertake maintenance or minor building work associated with the business premises, your client has a legal obligation to ensure that all work is carried out safely without damaging anyone’s health. The law covers the all aspects of the building project from start to finish such as how it is planned, organised, managed, project time-scales and phases, the contractor, the designer, welfare of the workers and others on site and health and safety record keeping.

It’s a piece of legislation that uses good design and planning to reduce the number of accidents on site. The latest update means that, for the first time, regulations will apply to construction work commissioned by home-owners. Of the 43 fatalities on construction sites last year, three-quarters were on smaller sites, so the change is being implemented to recognise that the risk is not only on larger sites.

If regulations are not adhered to, construction work may have to be stopped, financial charges may be incurred if the HSE has to spend time resolving the issue. For serious breaches your client could be prosecuted.

From a conveyancing perspective the sale of property could be affected if there is any renovation or other work carried out by a builder who does not comply with the rules.

Under the new rules all builders, whatever their size, working in the domestic sector will have to create a construction phase safety plan for all building projects and all domestic projects will have to meet the same basic standards for the provision of welfare facilities as commercial projects.

For the domestic residential market this means that any construction projects finishing after the 6th April need to have a ‘handover pack’ including ‘built drawings or specifications of components that have been installed.

The responsibility of the home-owner to be clear on who is responsible for site health and safety, and chase the relevant documents at the end of the project.

Clients should be aware that their exposure to claims in negligence has potentially been raised as a result of these Regulations.  In many cases breach of statutory duty is no longer a cause of action itself (Enterprise and Regulatory Reform Act s69), however statutory duties may still influence the existence of a duty (or the reasonableness of behaviour) in negligence claims. The imposition of a number of positive duties via these Regulations may result in a higher expectation of ‘reasonableness’ in the common law context and may therefore lead to personal injury claims against domestic clients that would not have arisen in the past

Practical Implications

If acting for a seller then you should be alert to building works which have commenced but are in still in progress or which have finished after 6^th April 2015 and to ask you client to provide evidence of compliance with these regulations.   You should be ready to receive and respond to a request for a health and safety pack.

If acting for a purchaser then an enquiry along these lines about any recent works should be raised especially if purchasing a new build property.  Equally those who manage a leasehold property should also be asked for these details if recent works have been carried out to a block of flats, for example.  Perhaps the LE1 form should be amended to include such question.

In the case of a multi-let building where the landlord retains repairing obligations in respect of parts of the building it may be appropriate to check that the landlord has been given the health and safety file on completion of the tenant’s project.   Landlord’s when giving consent for works under a lease should make a condition of a license to require the tenant to produce the health and safety pack.

Sorry but yet another regulatory obligation to add to an ever growing list for the underpaid and over worked conveyancer!

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Additional Enquiries - A Room 101 Opportunity

Do conveyancers  agree that the type of reply shown below should be sent in a concerted effort to bring an early end the growing practice adopted by many conveyancers out there who take great delight in raising copious and unnecessary additional enquiries?:

'Dear Sirs 

Thank you for your long list of additional enquiries. 

We do understand the principle of caveat emptor and the need for due diligence. However the Protocol as you know has made it very clear that solicitors should resist the urge of raising unnecessary enquires.  

Paragraph 32 of the Law Society Conveyancing Protocol states as you know that the buyer's solicitor should: 

'Resist raising any additional enquiries, including those about the state and condition of the building, that have answers which are capable of being ascertained by the buyer's own enquiries, survey or personal inspection. Such enquiries should not usually be raised. Indiscriminate use of 'standard' additional enquiries may constitute a breach of this Protocol. If such enquiries are submitted, the seller's solicitor is under no obligation to deal with them. Nor does the seller's solicitor need to obtain the seller's answers to any enquiries seeking opinion rather than fact'

Noting than many of the enquiries you have raised fall within the category mentioned above could we please ask you to review the enquiries raised and send back to us only those which could be objectively considered as necessary. 

Please keep in mind that we are keen to assist and do not wish to do anything which could delay the progression of the transaction. Indeed it because of this that our request for a smaller but more relevant list of additional enquiries is produced. 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Building Regulations: Cottingham v Attey Bower & Jones Re-Visited

Time and time again I am asked by buyer’s solicitors for indemnity insurance to address the absence of building regulation approval for home improvements such as an extension.  In the majority of these cases there is no justification for the cost of establishing an indemnity policy and though I do my best to argue my case I am frequently met with misconceived responses. The truth is that many conveyancers do not have the time to consider the law and the easy route is to ask for insurance. 

I am sure I am not alone when I say I did not become a lawyer to ignore the law and to follow blindly practices which have through laziness become  the norm.  I recognise conveyancing is very much rooted in practice but there is applicable case law and statutory provision which ought at times to be considered. 

So when asked for indemnity insurance to address the absence of building regulation approval and or a completion certificate a competent conveyancer should look at the facts and apply the law accordingly.  The offer of indemnity insurance look be looked upon as a last resort option. 

The first question to consider is when was the work carried out.  If it was completed within the last 12 months then my view would be to insist on the seller seeking retrospective  building regulation approval/completion certificate.   The Law Society's Conveyancing Handbook, makes it clear that only where work had been done in the preceding 12 months should the purchaser's solicitor enquire whether building regulations consent was obtained and complied with. Don’t even consider indemnity insurance in these cases.  This is a sticking plaster and in the words of Taylor Swift ‘Band-aids don't fix bullet holes’!  Most lenders would also require  retrospective consent remembering of course that the lack of approval and or a completion certificate should be reported. 

If it was carried out over 12 months then the seller should be asked whether it was work undertaken under concealment which would not of course be the case if planning permission was sought.  The seller should also be asked if building regulation approval has ever been refused.  It should also be ascertained with reference to your clients survey whether the work is likely to give rise to serious threat to life and safety. If for example the work was undertaken 20 years ago and the works are viewed by the surveyor as sound it would be difficult to see how a local authority could even contemplate injunctive action under section 36(6) of the Buildings Act.  

Keep in mind when asked for that costly and often unnecessary indemnity policy that it is there to protect the client from enforcement action under s36(6) not to provide protection if the works subsequently prove defective.   So one has to weigh up the risk of enforcement and in doing this it well worth keeping in mind that in 1998 an enforcement concordat was signed and adopted by almost all local government organisations with an enforcement function. This requires building control departments when carrying out enforcement to take a consistent approach and treat matters with proportionality, effectively making it unthinkable that injunction proceedings would now be utilised in relation to a minor item of domestic building work that took place years before.

Birmingham building control unit, the largest in the country, only had to resort to court action in five cases in 2003.

In cases where I argue indemnity insurance is not necessary or indeed required those competent conveyancers acting for the buyer often trot out the argument that following  the decision in Cottingham v Attey Bower & Jones [2000] PNLR 557 there is no longer any time limit on enforcement and therefore indemnity insurance should be sought in every instance where there is no building regulation approval.

This is an interesting authority and one which is not really based on the risk of enforcement but has more to do with the defectiveness of works carried out.  In Cottingham the buyer's claim related to the cost of rectification of the defective works and not loss arising out of enforcement action. In fact there was no enforcement action taken or indeed threatened.  The claim would have been brought against the buyer’s surveyor and the seller had it not been for doubt as to their financial standing. 

Its is also based on the the failure of the buyer’s solicitor to make adequate inquiry about building regulation approval.   This would suggest that if a buyer asks about building approval and discovers this has not been sought then if in the judgment of the buyer’s solicitor there is no or little risk of enforcement ( relying for instance on the survey) it could be argued with justification that the buyer’s solicitor in not  pursuing the issue has acted in the best interests of his or her client.  The only proviso to this is that the buyer client should be warned there is a risk of enforcement albeit a minimal one. Providing this advice is given it would be difficult to see a Cottingham situation arising particular in the light of the 1998 Concordat. 

In short there is a need to look at each individual case on its own merits and to be bold enough to make a judgement call based on both case law, statute and the practice  direction of the enforcement agencies. 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Is there a need to order a plan search in all purchase transactions? Orientfield Holdings Ltd v Bird & Bird LLP [2015] EWHC 1963 (Ch) (26 June 2015)

The decision in  Orientfield Holdings Ltd v Bird & Bird LLP [2015] EWHC 1963 (Ch) (26 June 2015) should serve as a warning to all conveyancers of the serious financial consequences that can flow from mistakes made when carrying our due diligence on the purchase of a property.   

In Orientfield the buyer’s claim against the conveyances acting on its behalf was for damages arising out of an alleged breach of contract and/or negligence relating to the purchase of a property in London. Contracts had been exchanged, a deposit paid by the buyers of £2.575 million and completion fixed for the 4th April 2011.

The  buyer sought damages contending  that its former conveyancers were in breach of duty as they had not informed the buyer of the impending development of a school, which the conveyancers had been aware of from a planning search carried out by them.

The trial took place during June 2015. The conveyancers argued that the buyer had bought the property solely as an investment in central London whereas the buyer said it was bought as a residence in retirement for the owner of the its Company.

The conveyancing transaction included a Property Information Form completed and signed by the Sellers. In the question headed Notices and Proposals they had marked ‘no’ in respect of any notices or letters received which would affect the property and in answer to whether the sellers were aware of any proposals for development nearby, they had written that the buyers should make their own enquiries, which the conveyancers had queried with the sellers solicitors as being an unsatisfactory answer.

In email correspondence the sellers solicitors told the conveyancers to carry out a Plan search which they did and which revealed all the planning proposals for the area including the school. The conveyancers sent their report on title of 9th November 2010 to the buyer without revealing the results of the Plan search and confirming to the buyer  the local authority search result “which does not reveal anything adverse”.

After receiving the report on title the buyer gave instructions to the conveyancers to proceed to exchange of contracts with the deposit of £2.575 million paid.

The buyer’s friend in this Country discovered through talking to neighbours, the proposal to redevelop the school.

The buyer then contacted the conveyancers via emails who sent her a copy of the Plan search result with a comment that as they had not seen the search result, they may wish to take independent legal advice.

Email correspondence followed between the Claimant and conveyancers asking for the purchase to be rescinded on the basis that the sellers had not disclosed the school development. The conveyancers did not follow up on this or advise the Claimant to obtain a valuation of the property before rescission. The conveyancers appointed Counsel to advise on whether the sale should be rescinded. Counsels advice identified three reasons why rescission would prove difficult and also risky, one being that there was no evidence the notice of development had been sent to the property.

A property litigation lawyer was subsequently engaged by the buyer and notice of rescission was served on the basis that  “the answer to question 3.1 in the PIF was untrue because (i) the Plants had received notice of application for both outline planning permission in 2008 and detailed planning permission in 2010, (ii) the Plants had commissioned Knight Frank to submit a detailed objection on their behalf at outline application stage and (iii) with others, had objected via Boisot Waters Cohen at detailed planning stage”.

Negotiations took place and the proceedings were settled before trial on the basis of a 50/50 split of the deposit. 

The buyer then brought proceedings against the conveyancers for breach of contract or duty and their failure to let the Claimants know about the Plans search results and the Defendants failure to investigate the results in an effort to recover the other half of the deposit and unrecovered costs.  The conveyancers denied breach of duty using and argued that even if there was a breach there was no causal link between the alleged failure to advise and the consequential loss. Essentially arguing that the buyers would have still proceeded with the purchase in any event. 

His Honour Judge Pelling on considering Breach of Duty found in his judgment that the conveyancer  “was in breach of his duty by failing to include in the ROT a summary of the effect of the Plan search report, the further investigations that could be undertaken with the LPA without undue difficulty, cost or delay, and to invite instructions in the light of that summary. By doing so, he would have given Ms Chow the opportunity to decide whether she wished to proceed, withdraw or obtain further information before deciding”.

In considering Causation, His Honour Judge Pelling ruled that the final point to prove this issue was the email to conveyancers acting on the property purchase where the Claimant had said

“I am sure I would not have entered into the purchase agreement if I had known that there was going to be a school for 1250 pupils and 250 staffs in the same block as my property.”

He continued that even though the buyer had become aware of the conveyancers failure to reveal the results of the Plan search and had taken other legal advice, he did not believe that the email was anything other than it was “reflective of her honest belief at that time”, which she had expressed long before the start of the proceedings. He was satisfied that the Claimants had “established the causal link necessary to maintain its claim in damages for breach of duty against the defendants”.

The decision is to be appealed. 

Lessons to learn

There are a number of unanswered questions arising from the above which makes it difficult to carry out a complete and fully informed evaluation of the decision and its practical consequences. 

To begin with its unclear why the buyer agreed to compromise on the financial consequences of rescission when it seems the seller had not acted in good faith when failing to disclose the fact that notice of the development has been received by the seller but the seller had failed to disclose this in the Property Information Form. It seems to be that there had been a deliberate concealment which should have provided a more than sufficient basis to justify a clean and complete rescission of the contract.  Perhaps the buyer was not too concerned about not making a full recovery given the fall back of a claim against the conveyancers.  

It would have been interesting to know whether there would have been a different outcome to  the rescission discussions had the conveyancer not sought a plan search and had proceeded to report to the buyer solely on the basis of the Protocol documents. 

The decision clearly reinforces a message which seems to have become lost in the age of the Protocol that when acting for a buyer greater energy and scrutiny needs to be given to the replies to the answers given by a seller in the Property Information Form and related communication.  Its unclear why the conveyancers did not press the sellers solicitors for an answer to question 3.1 of the property information form  and not accept what is fast becoming a standard reply of ‘rely on your own searches’.  The seller should be required to answer 3.1 with a ‘yes’ or a ‘no’.  A search will not reveal whether  a  seller has received a planning notice.  Only the seller would know and this is why the question is raised in the Form. 

This was  the first error made by the conveyancers and one which is reflective of a more growing and widespread practice.  

It is clear a failure to disclose a search report having received one is not advisable especially when it should have been obvious having read through it that it contained information highly relevant to the transaction. The unanswered question is whether this decision would have been the same had the report been sent to the buyer but without comment and advice on its content.  Looking at the judgment it would on the face of it appear that the mere disclosure of the report would not have been sufficient, though this is far from clear, particularly when there must be a reasonable expectation that a client having received the report would have read through it. 

The other unclear aspect is whether there is in fact an obligation on a conveyancer to always commission a plan search or at the very least advise that one should be obtained.  My view is that the latter should at the very least form part and parcel of the practice of a comment conveyancer. By advising the client of the insufficiency of the local authority search when it comes to pending planning applications the client should be advised in clear terms that a plan search should be sought or at the very least the client should make their own enquiries with the local authority. 

At the end of the day the conveyancers in this case really do not have any excuse for the failures and I doubt any appeal will be based  on the breach of duty issue.  I suspect what has happened here is that the report has come in and was overlooked.  In a bust conveyancing practice this can happen.  The more avoidable error was the  failure to push the sellers solicitors on providing further information on the reply provided to question 3.1 of the Property Information Form.  The readiness to accept an unacceptable reply to that question was the beginning of a very bad day for those conveyancers. 

MJP Conveyancers are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@mjpconveyancing.com

Are you allowing your clients to be ripped off by indemnity insurers?

The cost of moving could in some transactions be reduced if more lawyers took time to consider planning and building regulation requirements more closely. 

The knee jerk reaction by some to jump to the tune of indemnity indemnity insurers and take out unnecessary insurance is inexcusable. Often clients are asked to pay several hundred pounds for insurance which if the lawyer took more time to consider the case would not be required. 

In this article I try and set out my thoughts on what lawyers should be thinking and doing when considering the planning and building regulations requirements of changes and additions to a property being purchased or sold by a client. 

If you know about an alteration or addition to a property that has happened in the last four years or a change in use within the past 10 years the yes insist on seeing the planning.  It's important to check the conditions if any to ensure there has been full compliance. If consent doesn't exist then indemnity insurance can be considered.  Check with the lender if the client is purchasing with a mortgage since the lender may not depending on the circumstances be willing to lend. 

However if changes have taken outside these periods ( 4 years where there is planning consent without conditions and 10 when there are conditions or change of use ) is it really necessary to push for sight of the planning consent. If you know the work was not concealed and the local search result shows no breach of condition is it really necessary to call for and par for indemnity insurance? 

The Planning Act 1990 states that lack of consent for work completed over 4 years ago is unenforceable and there is immunity for breach of condition or change of use after 10 years. You should if acting for the buyer ask the seller to confirm that the work was not concealed as in the case of Welwyn Hatfield Council v. SSCLG [2010] EWCA Civ 26 & R. (Fidler) v. SSCLG - [2011] EWCA Civ 1159

Why waste money on indemnity insurance which is wholly unnecessary and only serves to put easy money into the pockets of indemnity insurers. 

Turning now to building regulation approval. If the works were pre 1985 there is no need to worry if no approval or completion certificate exists. Local  Authorities were not compelled to keep records until the advent of the Building Act 1984. So dont be tempted to take out insurance. 

The Buildings Act 1984 was the first time that the Authority was required to keep records of Buildings Regulations. 

If the works were carried out post 1985 and a Building Regulations Completion Certificate is revealed by your search there is no need to seek a copy unless you are unsure about what it covers. 

If work was carried out in the past 12 months and there is no reference to it in the local search report then report to lender if purchasing with a mortgage and  check with Valuer/Surveyor as to structural integrity of the alteration and the issues that arise if the client were to undertake additional works.  In this situation always seek subject to the lender’s approval indemnity insurance because  the Local Authority has rights to serve a Stop or Enforcement notice within 12 months under the Buildings Act 1984. Consider whether a retrospective certificate should be sought. 

If work undertaken more than 12 months ago and there is no evidence of a completion certificate then  advise the client of lack of  availability of a Completion Certificate and to check with Valuer/Surveyor as to structural integrity of the alteration and the issues that arise if they wish to undertake additional works.    

If the surveyor has concerns then if there is a lender involved advise straight away and consider seeking a retrospective certificate or indemnity insurance. Advise the client on the exposure to enforcement action. These situations are the exception rather than the rule. 

If there are no concerns its unlikely the client would be exposed to enforcement action because  there would be nothing in the public interest to support an application for an injunction under s.36(6) of the Buildings Act 1984 to seek demolition of the works unless the works has been concealed and or present a health and safety issue to the public.  In my opinion don't waste money on indemnity insurance. 

So what about installation certificates?

The same applies as above and to help I have put together a draft reply to deal with those countless requests for charitable donations to the indemnity insurers coffers. 

This is the reply I suggest when a seller is asked for indemnity insurance for the absence of a FENSA or other installation certificate where these are shown to exist in the buyers local authority search:

It is clear from the result of the local authority search that the installation was undertaken according to requisite building regulations and therefore there is no scope to argue your client will be exposed to enforcement action.  Indemnity insurance is therefore unnecessary and will not be offered.  If you disagree then we would ask you to cite legal authority to support your argument that indemnity cover is necessary and indeed essential in terms of protecting your client’s interests. 

The reply of a seller when asked for indemnity insurance for the absence of a FENSA or other installation certificate where this is not disclosed in the result of the local authority search would I suggest be as follows: 

The time for enforcement action ended some time ago and unless the Local Authority can show that the installation presents a danger to the public then there is no scope to argue your client will be exposed to enforcement action. Indemnity insurance is therefore unnecessary and will not be offered.  If you disagree then we would ask you to cite legal authority to support your argument that indemnity cover is necessary and indeed essential in terms of protecting your client’s interests. 

As mentioned above if there is no evidence of building regulation compliance your client is better off paying for a competent contractor to inspect and report on the installation than wasting money on indemnity insurance. The risk of enforcement action is very low compared with the cost of replacement if the work was carried out haphazardly. 

Do keep in mind every transaction is different and the above general observations and guidance may not always apply. If you are a homebuyer or seller you should always take advice from an experienced conveyancer. The above is offered as guidance rather than advice that can be relied upon. 

Morgan Jones and Pett are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk