This was a conveyancing-related case where land was bought for developmental purposes, but the buyer later found a drainage pipe which very much limited the potential of the land. The pipe's existence had not been disclosed on the sale, because it was not known to the seller. Held: Under the National Conditions of Sale, it is the purchaser who takes the risk of there being easements unknown to the seller.
The court clarified that a seller was not liable for damages for misrepresentation if he had taken reasonable steps to make known to the purchaser what he himself knew.
Clause 14 of the Conditions attached to the Agreement for sale in this was is not an exclusion clause, but rather qualifies the sellers obligations. It did not therefore fall to be tested for reasonableness.
In using the phrase 'not so far as the vendor is aware' replies to preliminary enquiries the court determined that that such a statement was akin to a representation that the seller’s conveyancing solicitor and the seller had each made appropriate enquiries to support the statement.
The court concluded: 'knowledge may go beyond what is in somebody's head, that it requires a solicitor to read his file and to read it properly and to make . . . reasonable and prudent investigation of the grounds upon which the belief is based . . .'
The Law Society through their magazine the Gazette in an article about this case states “The effect of this case would appear to be that a prudent conveyancer should check the deeds carefully, read the file and any other relevant files the firm may have by checking the filing records, and following this make any other reasonable and prudent investigations. Checking answers given on SPIF1 must be part of the solicitor's duty as a prudent conveyancer. Failure to do this would surely amount to at least inadequate professional service, and probably professional negligence”.
Although the Law Society state “The Society recommends that solicitors complete the second part of the SPIF form.” There is no binding duty of the seller’s conveyancing solicitor to complete Part II of the Property Info Questionnaire.
It is due to this case of William Sindall Plc -v- Cambridgeshire and the statement by the Law Society that we at Fridays endeavor to ensure that where a seller completes a Sellers Property Information form that we ask the Seller’s lawyer to complete a Sellers Property Information Form Part II. In other words attempt give the buyer that we are acting for maximum protection and entitlement to rely on the information provided by the seller.
Unfortunately, most seller’s conveyancing lawyers, in the interest of self preservation, refuse to complete Part II of the Sellers Property Information Form.
No comments:
Post a Comment