Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

Inaccurate local search

For the law, regulation, and practice of the various professions and those heading out to join up.

Re: Inaccurate local search

Postby dls » Sun Apr 06, 2014 8:19 pm

If the road is completely not made up - untarmaced and mud, then how did he think it might be adopted.

If it is, then what is the value - very little.

And I have pointed out where the answers may lie.
David Swarbrick (Admin) dswarb@gmail.com - 0795 457 9992
User avatar
dls
Site Admin
 
Posts: 12252
Joined: Thu Nov 01, 2012 1:35 pm
Location: Brighouse, West Yorkshire

Re: Inaccurate local search

Postby theycantdothat » Tue Apr 08, 2014 11:09 am

I have been giving some further thought to this.

I think it is the case that the average buyer making an offer for residential property does so without having said to himself something like: "My offer is based on the assumption that the road is adopted, there are no public footpaths crossing the land, there are no restrictive covenants preventing me from putting up a conservatory, the seller has not been involved in a boundary dispute with the neighbour and the structure of the building is sound and so on and so forth." If he has some concern in a particular area and raises it with his conveyancer or surveyor I am unclear as to why that ought to be significant later if he makes a claim and the question asked whether he would have proceeded anyway and/or sought a reduction in price. The essential point seems to me to be that, whether the issue was one he had considered or not, if he was told that something is the case when it was not (or not told something which he ought to have been told) he was deprived of the opportunity of deciding whether to withdraw or seek a reduction in the price.

As to the measure of damages, non-pecuniary damages would seem to be ruled out as the amenity of the property is not affected - at least not immediately if the road is in a good or reasonable state of repair. If it is the difference between the value of the property with the road adopted and the value with the road unadopted (which may be held to be negligible) and it is not based on some assessment of possible future expenditure, I think the buyer is entitled to wonder why the question was posed and declare that he thought it was important for a buyer to know whether a road is adopted. Whilst acknowledging that it is a general principle that there can be damages without a loss, the result seems to be that a search company has no incentive to produce accurate searches.

As to whether the conveyancer is liable for the default of the search company I have done some desultory googling. The position does not seem to be clear cut (no surprise there) but something like the following: Irrespective of whether the agent is employed by the client or the lawyer, a lawyer is not responsible where he employs/instructs counsel, a foreign lawyer or a non-lawyer professional. He is however responsible if the job delegated is one which he could have carried out himself. Any conveyancer has to be deemed to be competent to conduct a personal local search and if he appoints an agent it is only because he finds it convenient to do so. It would seem therefore that a conveyancer is liable if a search company produces an inaccurate local search.
theycantdothat
 
Posts: 1164
Joined: Fri Nov 02, 2012 7:36 pm

Re: Inaccurate local search

Postby atticus » Tue Apr 08, 2014 11:12 am

Reliance remains a hurdle to be cleared in making a claim.
User avatar
atticus
 
Posts: 19847
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Inaccurate local search

Postby theycantdothat » Tue Apr 08, 2014 5:06 pm

But is it not the case that in conveyancing the client's reliance is on the whole general rather than specific?
theycantdothat
 
Posts: 1164
Joined: Fri Nov 02, 2012 7:36 pm

Re: Inaccurate local search

Postby atticus » Tue Apr 08, 2014 5:15 pm

atticus wrote:Let's start with what this purchaser would have done had the search result come out correctly. We have someone who had agreed a price, knowing that the road might be unadopted.

A vigorous defence would test this purchaser thoroughly.

If he had believed the road was adopted all along, and would have proceeded differently if advised correctly, then the claim is clear.
i think the above remains unanswered.
User avatar
atticus
 
Posts: 19847
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Inaccurate local search

Postby theycantdothat » Sun Apr 13, 2014 11:32 pm

It seems that the following happened:

1. The buyer made an offer without giving any thought to the possibility that the road might not be adopted.

2. Later she was supplied with a copy of the transfer which contained provisions relating to the adoption of the road.

3. She asked her solicitor if the road was adopted.

4. The solicitor said to wait for the search result.

5. The search indicated that the road was adopted.

At no time therefore did the buyer need to give any consideration to what she would do if the road was unadopted.

I would like to revisit the question of the measure of damages. It may be that a court would decide or it would be conceded that the price the buyer paid was the price a buyer would have paid knowing that the road was unadopted. However, the fact remains that the buyer was deprived of the opportunity of deciding whether or not to buy a property on an unadopted road; she did not get what she expected to get: a house on an adopted road. There is also the fact that, even if the value of the property is not an issue, expense may be incurred in the future. Surely this has to be taken into account? The judicial comments in the case where a surveyor who was asked to establish if a property was under the flightpath of planes landing at Gatwick and said it was not when it was, suggest a willingness to award damages where there is no economic loss if for no other reason than to discourage professionals from being negligent. Though not on quite the same point, in the case where a man ordered an extra deep deep-end to his swimming pool and only got a the usual depth, the court awarded damages even though he suffered no loss; he did not get the thing he had ordered and the court wanted to show that builders cannot unilaterally change the specifications of a job and argue that it's no skin off the customer's nose.

The buyer is now talking to the search company's insurers. They have told here that she cannot discuss the matter with anyone. Surely they cannot impose that condition? Apart from anything else, the claim is against the search company and not the insurance company.
theycantdothat
 
Posts: 1164
Joined: Fri Nov 02, 2012 7:36 pm

Re: Inaccurate local search

Postby dls » Mon Apr 14, 2014 6:54 am

It does not make sense to discuss an ongoing case in a very public manner.

The OP is asking an insurance company to pay the bill. Asking them to then fight the good fight whilst telling all about what is happening does not make sense. They cannot prevent such a discussion, but they may according to the circumstances be free to decline indemnity.
David Swarbrick (Admin) dswarb@gmail.com - 0795 457 9992
User avatar
dls
Site Admin
 
Posts: 12252
Joined: Thu Nov 01, 2012 1:35 pm
Location: Brighouse, West Yorkshire

Re: Inaccurate local search

Postby atticus » Mon Apr 14, 2014 7:05 am

atticus wrote:Damages for negligent misstatement would be based on Diminution in value: (a).
User avatar
atticus
 
Posts: 19847
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Inaccurate local search

Postby theycantdothat » Mon Apr 14, 2014 10:21 am

atticus wrote:
atticus wrote:Damages for negligent misstatement would be based on Diminution in value: (a).


Say a court decides that, taking into account the fact that the road is unadopted, the value of the property at the time of sale was £200,000, but the buyer in fact only paid £198,000 because the seller wanted a quick sale. The court declines to award damages. A few days after the court case the buyer receives a substantial demand for repairs to the road. I think the buyer is entitled to say: "I may have paid less than the full value, but nevertheless if I had known that the road was unadopted I may have offered even less to take account of possible future expenditure. It is also possible that I would not have proceeded at all at any price on the basis that I did not want the hassle of living on an unadopted road. I was deprived of the opportunity to make an informed decision about whether to buy and if so at what price. Why did I bother to pay for the search?"

Having regard to the decision in Farley v Skinner it would seem that the buyer is entitled to some damages even though she has suffered no loss. I quote from the case:

It is a singularly unattractive result that a professional man, who undertakes a specific obligation to exercise reasonable care to investigate a matter judged and communicated to be important by his customer can in Lord Mustill's words in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, 360 "please himself whether or not to comply with the wishes of the promisee which, as embodied in the contract, formed part of the consideration for the price". If that were the law it would be seriously deficient. I am satisfied that it is not the law.

Why is the principle embodied in the above not applicable? Even though the buyer did not specifically communicate to the search company that she was interested in knowing whether the road was adopted, whether a road is adopted is an important issue which every buyer must be assumed to want to know. It cannot be the case that a buyer making a local search is required to inform a search company of the matters he considers especially important.
theycantdothat
 
Posts: 1164
Joined: Fri Nov 02, 2012 7:36 pm

Re: Inaccurate local search

Postby theycantdothat » Mon Apr 14, 2014 10:29 am

dls wrote:It does not make sense to discuss an ongoing case in a very public manner.


Do not most of the questions raised in this forum concern ongoing cases?

dls wrote:The OP is asking an insurance company to pay the bill. Asking them to then fight the good fight whilst telling all about what is happening does not make sense. They cannot prevent such a discussion, but they may according to the circumstances be free to decline indemnity.


I do not think the buyer is asking the insurers to pay the bill. She is asking the search company to pay compensation and the insurers have stepped in to negotiate. Their objective is to minimise the payout. It has to be wrong for them to insist that the buyer cannot take advice on whether any offer is reasonable. Further, whatever the terms of the insurance may be it has no bearing on whether a claim will succeed. The search company cannot deny any liability to pay on the basis that the buyer declines to comply with conditions she did not agree to in advance.
theycantdothat
 
Posts: 1164
Joined: Fri Nov 02, 2012 7:36 pm

PreviousNext

Return to Professions, Legal and Other. and their Students

Who is online

Users browsing this forum: No registered users and 1 guest