One of the most important tasks for a solicitor acting for a buyer of a property is to read the contract and associated documents and to look through the searches and then to raise any pertinent enquiries.
However, there are certain guidelines that need to be followed.
For instance, long lists of “standard enquiries” which do not relate specifically to the property in question are discouraged and many solicitors will not answer them.
Most solicitors agree to operate in accordance with the terms of the Law Society’s Conveyancing Protocol. It’s use is considered best practice. The Protocol states that questions which relate to the physical state of the property or which can be answered by an inspection of the property should not be raised between solicitors but are a matter for survey and inspection.
The enquiries that can be raised cover a myriad of concerns. They may arise from what is contained (or not contained) in the title documentation or searches. They may be prompted by matters contained in the survey report. Most surveys have a section “Matters for your legal advisors”. They may relate to planning issues. In particular, if works have been carried out on the property that may have required planning permission and/or building regulation approval it is essential to make sure that the necessary consents were obtained.
It is also important for the solicitor acting for a seller to ensure that the seller provides the fullest information. In relation to any enquiries received it is better to “over disclose” than “under disclose”.
One standard enquiry that is raised asks if there have been any disputes relating to the property (usually with a neighbour). On more than one occasion a client has questioned whether a dispute needs to be disclosed when it happened 20 years ago and the neighbour in question has died or moved away.
If information is withheld which might have influenced a buyer’s decision about going ahead the seller is at risk of being sued for non-disclosure or misrepresentation.
If a seller is less than forthcoming about pre-contract enquiries or is economical with the truth, a potential buyer is likely to be suspicious that the seller is trying to hide something so the best advice one can give to a seller is to be totally open and “above board”.
Current consumer protection regulations require estate agents to disclose matters which might affect a buyer’s willingness to proceed. For instance, if someone has been murdered at a property it would appear that this has to be disclosed.
Other things which might need to be disclosed include whether the property lies under a flight path or whether neighbours have had an ASBO served on them or possibly even whether the property is haunted!
The presence of Japanese knotweed has to be disclosed and failure to do so can result in a seller being sued for many thousands of pounds.
The best advice has to be to consider whether any circumstances might affect a potential buyer’s willingness to proceed and if it might it is essential to disclose it.
For further information, please contact David Wheaton, a Consultant Solicitor in our Sidmouth office, on 01395 577061 or at davidwheaton@wbw.co.uk.
WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
