William Sindall Plc v Cambridgeshire County Council remains an important conveyancing case concerning seller knowledge, qualified replies to enquiries and the investigations required before stating that the seller is unaware of a matter affecting the property.
The purchaser acquired land for development but later discovered a drainage pipe that materially restricted its development potential. The pipe had not been disclosed because the seller said it was unaware of its existence.
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.
Why William Sindall still matters to conveyancers
The terminology and conveyancing forms have changed since this article was first published in 2009, but the underlying lesson remains relevant. A qualified answer such as “not so far as the seller is aware” should not be treated as permission to answer from memory. The conveyancer should consider the deeds, the file, information held elsewhere within the firm and whether reasonable further enquiries are required before the answer can properly be given.
The case also illustrates the difference between identifying a legal fact and explaining its practical significance. The drainage pipe did not merely represent another entry affecting the land. It materially restricted the purchaser’s intended development. Our more recent article, The Client Signed the Report on Title. But Did They Understand It?, considers why a conveyancer should connect title information, searches and enquiries with the buyer’s intended use of the property. Recording a matter in the paperwork is not necessarily the same as enabling the buyer to make an informed decision.
A similar need for careful investigation arises where the available paperwork does not establish the true position. Our guide to missing planning permission and indemnity insurance explains why the conveyancer must first identify what is missing, what enquiries are appropriate and what the problem means for use, value and future marketability. A convenient assumption or insurance policy should not replace the underlying investigation.
Historical note: This article was originally published in November 2009 and records the case and conveyancing practice as understood at that time. References to historic property information forms and procedures should not be treated as a statement of the forms or professional requirements currently applying.
Unfortunately, most seller’s conveyancing lawyers, in the interest of self preservation, refuse to complete Part II of the Sellers Property Information Form.