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.