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26th April 2012

Unbelievable but true! How can you buy the wrong house?

Many people believe that conveyancing is just a mechanical process. I once had someone tell me that "a trained monkey could do it"! This was not intended to be a compliment on the intellect of monkeys, but an insult to human conveyancers.

Two recent court cases and three examples of our own in recent years show how significant the pitfalls are even in residential conveyancing and how much care must be taken by clients and solicitors alike. The lesson is --- don't make any assumptions and focus on all material facts. It is very easy to get even the fundamentals wrong.

The case of John Lubbock and others v. Robin Feakins and another decided by Sheriff Kelly at Jedburgh on 17th February (and available on the Scotcourts.gov.uk web site -if you have difficulty finding it let me know) is about an entire missing house! The sellers were selling a large estate with a number of properties. They knew they intended to exclude a particular property they knew as Clocker Lodge. The purchaser intended to buy the estate and was content to allow Clocker Lodge to be excluded. How come therefore it came to be included in the sale? And how come the purchaser was allowed to keep it? Incredible? Read the case. A combination of different names for the house...a nameplate had been put up by the occupier calling it something different so the purchaser and his solicitor, knowing there was no house that the purchaser had seen in the estate called Clocker Lodge, thought it must be something outwith the estate and took no interest in the point plus the scale of the plan attached to the title transfer being such that no one could really tell easily whether it was inside a red line or out...or at least people looking at the plan saw what they assumed it showed. A case of an innocent purchaser and an innocent seller and the judge having to decide where the loss must fall. Lessons to be learned? Be pedantic; be boringly detailed; make no assumptions that everyone knows what's in your mind and spell it out and check and double check material events and facts.

Three times in recent years in our own small firm we have seen circumstances where houses have been bought where the title ends up not including the whole plot and the efforts to disentangle the mess have been expensive and troubling to all concerned, not least the solicitors involved. On each occasion the property was on the edge of a housing development and the builders' plans were such that they could not be related to the plan of the larger area owned by the builder. Assumptions were made that the builders plan must show ground owned by the builder even although no one could really tell. In the event on each occasion the Land Register said that the builder had built on and sold ground part of which was not in the builder's ownership. The solicitors involved could not tell this from the plans. The clients approved the plans and the risk was taken. The correct approach in such circumstances must surely be for the solicitor to tell the client that the solicitor simply cannot tell whether the plan shows what the client wants to buy or whether the builder owns it and that this is a matter for draughtsmen, not solicitors. The solicitor cannot, if there is a lender involved, allow the purchase to proceed until matters are fully clarified. Clients however do not want to hear this two weeks before they move house when the builder produces their title and the house plan at the last minute! It takes a firm solicitor to explain why the conveyancing process can't sort this out easily. The answer could be a title indemnity policy obtained from an insurance company to stand behind the risk.

The case of Scotia Homes (South) Limited v. James Maurice McLean and another decided by Sheriff Grant McCulloch at Kirkcaldy on 17th February is another eye opener (also available on Scotcourts.gov.uk). A lady reserved a flat on a new housing estate "from plan", i.e. the block was not yet built. She thought she was buying a three bedroom flat but the builder knew it was a two bedroom flat and that was what she had to accept! How can it go so badly wrong!

Again assumptions were made about a plan and when the builders standard missives simply offered to sell Flat X on X development the buyer thought she was buying one thing and the seller intended to sell another. For various reasons the Sheriff sided with the builder or at least held that in the circumstances the law was with the builder. Each case is fact specific of course but the nightmare fact is that every week in Scotland builders missives are signed up for the purchase and sale of new properties not yet in existence and with no plan or detailed specification included. I know that in our firm we point out to clients the inadequacy of that and the fact that we cannot identify what is being bought and sold but in 90% of cases clients tell us just to go ahead---they will take the chance because they "trust the builder".

Can a trained monkey do a skilled conveyancing job? I don't think so. Sometimes however we can make monkeys of ourselves if we don't take care of fundamentals. No offence meant to our chattering, tree swinging friends, but it needs experience and alertness to know the pitfalls.

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