Applebys Professional Negligence Specialist Emma Semwayo Outlines Some Recent Cases Where Poor Service by Architects and Solicitors Led to Compensation
Two cases recently settled by Emma Semwayo of Applebys Solicitors highlight the catastrophic effect that negligence by Conveyancers and Solicitors, Architects and Surveyors have on our clients when buying both old and newbuild houses.
Time and again we are called on to assist people who have been let down by a trusted professional in the largest investment of their lives. The time, money and attention to detail paid by you in tracking down your dream home or investment property is not always matched by those responsible for transferring ownership to you or indeed with those who should be ensuring that your property is built to specification. We are often surprised by the seemingly simple errors made.
The piecemeal way in which land law, ownership and the registration of property has developed in England and Wales can lead to many traps for the unwary. This does not just affect older properties as the land on which new houses are built may well be affected by previous use. We are regularly approached for advice and assistance by people who due to negligence have bought a property with land which was smaller than they expected, or which is affected by issues of access, planning or third party rights which their Solicitor did not either discover or warn them about. Your dream home can end up a much less valuable nightmare of neighbour disputes and costly rectification.
Arguably the most distressing are those where the property is blighted by previous mining. Imagine if you were one day informed that your house had a mineshaft in the garden and this was something your Solicitor or Conveyancer had not warned you about. One of the most basic checks Solicitors and Conveyancers are trained to carry out is the mining check. This a simple search of the gazetteer, which can now be carried out online and which provides a list of areas affected by past mining. If you are buying a house in one of these areas then your Solicitor should as a matter of course advise you to obtain a full coal mining search.
Our clients Mr and Mrs A were not informed of this search by their solicitor and only found out years after the purchase that their property was blighted. They were left devastated, living in a property which was potentially worthless and with the fear that a collapse could happen at any time. We were thankfully able to assist, obtaining reports from mining and structural engineers and obtaining damages to compensate them from their Conveyancer’s professional indemnity insurer.
Architects Certificate / NHBC
Any homeowner is aware of the structural and maintenance issues that can arise in an older property but many of us would think this would be avoided in buying a new build. Not so as the case of Mr and Mrs S highlighted. They bought a new build property which had been “signed off” by an Architect’s Certificate, despite the building not adhering to planning conditions and building regulation controls. Their Solicitors failed to spot this and failed to advise on the difference between a build guaranteed by an Architect’s or Surveyor’s Certificate and one which is guaranteed by the National House Building council (NHBC).
The basic difference is that the NHBC 10 year Buildmark cover requires the builder to put right any defect reported to them on a property up to two years old at no cost to the owner. A further 8 years of direct insurance is provided to cover against damage resulting from construction defects (further information can be found on the NHBC website). Whilst not always dispute or problem free this system does provide a safety net. A Professional Consultant’s Certificate provided by an Architect or Surveyor by contrast is that professional’s certification that the building conforms with Building Regulations and contractual instructions for the purposes of securing a mortgage on the property. It will normally be accompanied by a copy of a Certificate of Professional Indemnity Insurance.
The difficulty arises when it becomes apparent that the Architect or Surveyor has negligently signed off the property without carrying out any or any proper checks: then your only recourse may be a claim in Professional Negligence for damages to put right the defects yourself.
In the case or Mr and Mrs S matters were further complicated as the Architect had died and there was no run off cover provided by the Professional Indemnity Insurer. We were able to highlight failings in the advice and representation provided by the Solicitor who had carried out the conveyance and claim damages from their insurer to allow Mr and Mrs A to put the work right and obtain building regulations and planning conformity for their home.
To contact Emma Semwayo for a free initial discussion please call 0800 169 1325 or e-mail firstname.lastname@example.org