The following is a guide to choosing the best solicitor when buying or selling a property. The author, Stephen Hill is a partner at Bolt Burdon Kemp and specialises in professional negligence claims. Here he explains how to avoid problems so you should never need his services.
How To Choose a Solicitor
Once you have found a property to buy one of the next steps you are likely to take is to find a solicitor to deal with the legal side of the purchase for you. There are lots of law firms that deal with conveyancing work and it can be difficult to decide which firm to use unless you have used a particular firm before or have received a personal recommendation of a firm. One thing that is worth looking out for when deciding which firm to instruct is whether the firm has the Conveyancing Quality Scheme accreditation. This is a scheme which is run by the Law Society and is given to firms which are considered to have a good understanding of conveyancing and good levels of customer service and communication. You can search for firms that are accredited on this website: https://www.lawsocietyapproved.com/Conveyancing.aspx.
You do not necessarily need to use a solicitor when buying or selling a property; legal executives and licensed conveyancers can also carry out conveyancing work and they may be cheaper than using a solicitor. When obtaining a quote you should ask the firm to confirm the qualification of the person who will have the day to day conduct of your case. You can check the qualifications of the person dealing with your file online at one of the following websites:
Solicitors - https://www.lawsociety.org.uk/
Legal executives - https://www.cilex.org.uk/
Licensed conveyancers - https://www.clc-uk.org/
What To Check For
Once you have decided which firm you would like to instruct they will normally send you a client care letter with a fee quote and their terms of business. They are also likely ask you to provide them with evidence of your identity, which is needed in order to comply with money laundering regulations. You should check that the firm you instruct has professional indemnity insurance as if you do have to bring a professional negligence claim this should be covered by the law firm’s insurance.
Where Do Mistakes Occur?
In my experience, professional negligence claims arising from negligent conveyancing occur more commonly than negligence in other areas of law. Claims can arise from a wide range of mistakes and they commonly occur where the lawyer has failed to discover something in the documents. My firm has recently settled claims which have arisen from (i) the failure to discover a private drainage system (ii) the failure to notice a restriction on the planning permission which affects the use of the property and (iii) the failure to ensure that the purchaser had a legal right of way to access their property.
What To Do If There’s A Problem
There are a number of instances where you might discover that your solicitor has been negligent. For example, when you come to sell your property the buyer’s solicitor may raise an issue which was not dealt with by your solicitor. Alternatively you may find out from a neighbour that, for example, the position regarding a boundary or right of way is not the same as you were advised by your solicitor.
As soon as you think that your solicitor may have been negligent you should contact a professional negligence solicitor to discuss your case. This is because strict time limits apply to bringing a claim and if you try to bring a claim after the time limit has expired it is very unlikely to be successful. Generally you must issue Court proceedings within 6 years from the date you suffered a loss (which is likely to be the date you exchanged contracts to purchase a property), or within 3 years from the date you found out that you may have a claim.
How Long Does It Take To Settle A Claim?
It is hard to predict how long it will take to settle or take to trial a professional negligence claim, as it largely depends on whether the negligent solicitors deny the claim and how quickly it is dealt with. If you have to issue Court proceedings, the speed of the case will be dependent on the complexity of the evidence required, particularly expert evidence, and the availability of the Court and witnesses. However, as a general rule of thumb, unless the case is particularly complicated you should expect your claim to have settled no more than 18 months to 2 years after you instruct a professional negligence solicitor.
How Is Compensation Calculated?
The compensation you are entitled to (known as damages) will depend on your individual case. However, the compensation which is payable in many professional negligence cases arising from negligent conveyancing will be based on the difference in value, at the date that you exchanged contracts, between the property in the condition you thought it was in (i.e. without the defect) and the condition it was actually in (i.e. with the defect), and this is known as diminution in value. If the appropriate compensation in your claim is based on diminution in value then your professional negligence solicitor should instruct an expert surveyor to carry out a valuation of the property with and without the defect. If the defect can be “cured” be spending a smaller amount of money than the diminution in value, then that lower sum will invariably be the basis of the compensation.
What Are The Costs?
It is almost impossible to predict the amount of costs that you will have to pay to your solicitor if you bring a professional negligence claim although they should be proportionate to the sums in dispute and the complexity of the issues. This is something which should be discussed with you at the outset and you should receive updates throughout the case. The costs that will be incurred in relation to your claim will depend on a number of factors including how much your solicitor charges, how complicated your case is and how robustly the negligent solicitor defends the claim. There are a variety of ways in which a professional negligence claim can be paid for, including paying privately and conditional fee agreements (known as no win no fee). If your claim is successful then you are almost always entitled to be paid your reasonable costs from the negligent solicitor (typically about 75% of the costs you have paid your solicitor), but there are additional liabilities such as the “success fee” under a conditional fee agreement which you cannot recover from the other side.
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