Conveyancing Solicitor

Freddyforrest

Hi all,

Just looking for a bit of advice.

My flat was converted from a language school back in 2011. The building is listed and in a conservation area. Since the conversion, there have been about 10 sales in the building, including mine in 2016.

I recently tried to sell my flat, but the buyer’s solicitor flagged that the original listed building consent conditions were never fully discharged. That means the property is technically in breach of planning rules, and as it stands, it's not sellable. I've had this confirmed by the local planning authority and will now have to apply for retrospective consent.

Unfortunately, the sale has fallen through because of this, and it’s ended up costing me quite a bit – both in legal fees and lost rent, as my tenants moved out a few months ago in anticipation of the sale.

Does anyone know if I might have a case against my solicitor from when I bought the flat in 2016? It seems like this should’ve been picked up at the time.

Any thoughts or similar experiences would be appreciated.

Thanks!

user1977

Does your current solicitor agree with the buyers? Obviously it wasn't a problem for the other sales.

Who decided to tip off the council about it, as that means no prospect of getting indemnity insurance, which would have been one solution.

A_Geordie

I'm not an expert in this area of law but have some general knowlege, so a couple of things to be mindful of: 

1. Usually enforcement of breach of planning/building conditions would be subject to a time limit but for listed buidlings I believe there is no time limit.

2. Breaches of the conditions can be enforced against the current owner irrespective of when or who committed the breaches. 

3. A claim against the solicitor firm who acted for you in the initial sale would be for professional negligence. The limitation period is normally 6 years from the date of the loss. However, in some circumstances such as yours when you didn't know there was any negligence at the time, you have a 'second' time limit of 3 years from the date you became aware to bring a claim otherwise a claim after that 3 year period will be out of time. 

4. Whether the solicitor firm was negligent is a question of fact. If you have a copy of all the paperwork from them that was provided during the sale conveyancing process and in particular the report on title, emails or other correspondence. I suggest you start looking through all of that and see if there is any reference to the building conditions not being complied with and if they ever advised agaisnt going ahead with the sale. If they did and you went ahead anyway, then I doubt there would be a claim against them.

If you don't have all of the paperwork, contact them and ask for a copy of your file because you have lost some of the paperwork - this might arouse suspicion and you might be asked why you want that information so try not to tip them off as to your intentions.  Given the lapse of time, it may be that they don't have any documentation in line with retention recods they could have been destroyed. Most firms keep records for at least 6 years maybe longer but not always. 

5. As part of the paperwork you might as well check the SPIF (Sellers Property Information Form) which is a standard set of questions asked to the seller who must reply honestly. An example of the questions asked in the SPIF can be found here: https://www.rlo.law/wp-content/uploads/2019/08/pif.pdf and the important section may be around what was asked and answers in relation to Section 4 (Alterations, building and planning control). IF the seller gave fales or misleading information, you may have a claim against the seller for misrepresentation in addition to any potential claim against the solicitor firm acting on your behalf. 

6. Property law disputes are expensive and costs can quickly spiral fast. You are best advised to seek independent legal advice once you have gathered and collected all material documents and information regaridng the situation. That advice could prove crucial in terms of any prospects of a succesful claim. If you have legal expenses insurance cover that should be your starting point as you can normally get advice and representation if there's at least 51% chance of success based on a legal review by a law firm nominated by the insurance company. It is common for legal costs to be covered up to £50k but some policies offer up to £100k and even then, that could be a drop in the ocean if the legal claim is disputed or court decisions are appealed.  

7. In parallel to considering any legal claims, it would be sensible to consider going down the retrospective planning route and employ the services of people with local knowledge of the area, the council and specialise in these types of planning applications which might give you the best chances of getting any breach of conditions approved, depending on the severity. Though with it being a listed building, retrospective approval could be much harder to obtain. 

8. Did you obtain indemnity insurance at the time of the purchase and does it cover this situation? IF the sellers had it then I believe they are transferrable to new owners and a copy should have been provided by your solicitor. 

Freddyforrest

When I was selling the flat, indemnity insurance was offered, but the buyer’s solicitor advised against relying on it.

Since then, I’ve been in contact with the local planning authority. They’ve visited the property and confirmed they are satisfied with the current condition and do not intend to take any enforcement action regarding the breach of listed building consent conditions.

However, to properly regularise the situation, they’ve recommended that I submit a retrospective application to formally discharge the outstanding conditions. They’ve made it clear this wouldn’t be a problem from their point of view.

However, this situation has resulted in several thousands of pounds in financial loss, including solicitors’ fees, lost rental income, and the costs associated with submitting a retrospective planning application. I believe these expenses should be the responsibility of my original solicitor, as this issue ought to have been identified during the conveyancing process.

Freddyforrest

P.s. to a fellow Geordie......I hope to fudge we don't sell Isak to Liverpool 

A_Geordie

Would be interested to understand why the buyer's solicitor advised against indemnity insurance given that its' specific purpose is intended to protect situations like this at little cost. I suppose it could be that the buyers may not have been as interested in the property or found something else instead and made it an excuse to withdraw. 

I think the best way to deal with this is to resolve the planning/building reg issues first and then seek to claim that back from the law firm, assuming they are still around. Obviously bear in mind that just because you have been invited to make a retrospective application, doesn't mean that it is guaranteed to be approved by the committee unless the committee consists of only those people who came out to view the flat. 

If you can show the seller provided sufficient information and detail on the SPIF that warranted further investigation into the planning or building conditions but they failed to do that, then it does seem like there has been some negligence. The devil is in the detail however, which is why you should pay attention to the report on title and that should be an indicator of whether building/planning issues were raised. If they weren't there's a reasonable chance you could argue negligence. 

As for Isaak, I think it would be a bad move for him but if his heart is elsewhere I would let him go and at least with certainty we can focus on bringing someone else in to replace him - maybe Sesko though I suspect he may be attracted to United's history and brand over Newcastle, especially if the ££ is on the table. Worst case, we pick up someone in January and accept there's an unlikely chance of repeat performace of last season to secure CL spot!

Freddyforrest

The issue relates specifically to the roof of the building, not the interior of my flat. Notably, nine other solicitors involved in previous sales within the building also failed to identify this issue.

A senior planning officer from the council has since visited the property and discussed the matter with her colleagues. Their view is that the appropriate course of action is to submit a retrospective planning application, which they are prepared to support.

The buyer’s solicitor advised their client that the unresolved planning condition could affect future resale potential, which ultimately led to the collapse of the sale.

This issue was identified very late in the process — I had already signed my contract and was waiting to exchange. Given how far advanced the transaction was, it seems highly unlikely that the buyer had simply changed their mind. It appears more likely that their solicitor raised concerns upon reviewing the planning documents in greater detail.

It has been a very tough transfer window that's for sure 

Freddyforrest

In fact, my solicitor also handled the conveyancing for another flat within the same building, meaning this issue was overlooked on two separate occasions.

My understanding is that the planning authority likely approved the alterations at the time, but that the relevant correspondence or confirmation was never formally recorded in the planning file. This absence of documentation is what has led to the current technical breach.