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Can an heir sue for negligence by conveyancer?

Re: Can an heir sue for negligence by conveyancer?

Postby theycantdothat » Wed Apr 13, 2016 8:58 am

The Caparo test requires that for a duty of care to arise:

(a) harm must be reasonably foreseeable as a result of the defendant's conduct
(b) the parties must be in a relationship of proximity
(c) it must be fair, just and reasonable to impose liability

I do not think we have any difficulty with (a).

With regard to (b) is the fact that the client has given the land away sufficient to create the required degree of proximity? Does the beneficary step into the shoes of the clent and assume all his rights?

As to (c) opinions will differ, but I think the view in the saloon bar will be that while the beneficary has not lost anything in the sense that his own estate has been diminished, somewhere along the line a lot of money has been lost. The testator will have made the gift believing it had a value of over £100,000. If he had known its true value he would (it is reasonable to assume) have made a different gift. In that sense therefore the beneficiary has suffered a loss. And what would the position be if the gift was inter vivos? Can the lawyer really argue that the donor has lost nothing because he has given the land away and that the donee has lost nothing because he has not laid anything out? The lawyer's liability ought not to depend on whether his negligence comes to light before or after his client parts with the land.
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Re: Can an heir sue for negligence by conveyancer?

Postby theycantdothat » Wed Apr 13, 2016 9:03 am

dls wrote:
To take an extreme example, suppose a man buys a plot to build a house on, but there is an enforcebable covenant on the title which prevents building and the difference in value between the land as a building plot and as a garden is £100,000. Is any devisee or donee owed a duty of care?


No. It is quite possible that a gift is made precisely and only because of the reduced value.


We can take it for the purpose of this thread that the donor makes the gift in the belief that it has value as a building plot.
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Re: Can an heir sue for negligence by conveyancer?

Postby atticus » Wed Apr 13, 2016 1:54 pm

With regard to (b) is the fact that the client has given the land away sufficient to create the required degree of proximity? Does the beneficary step into the shoes of the clent and assume all his rights?

confused thinking, tcdt.

The client has not - and cannot have - given the land away at the time the conveyancer is acting for him on his purchase of the land.
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Re: Can an heir sue for negligence by conveyancer?

Postby theycantdothat » Wed Apr 13, 2016 5:22 pm

atticus wrote:
With regard to (b) is the fact that the client has given the land away sufficient to create the required degree of proximity? Does the beneficary step into the shoes of the clent and assume all his rights?

confused thinking, tcdt.

The client has not - and cannot have - given the land away at the time the conveyancer is acting for him on his purchase of the land.


Confused thinking? Me? Surely not!

I am not entirely sure I understand your point. Where am I suggesting that the client gives the land away at the same time as the conveyancing is being undertaken?

Just to clarify:

A client instructs a conveyancer to act on the purchase of a building plot. The conveyancer is not left in any doubt that what is being bought is a building plot. The conveyancer fails to discover or spot an incumbrance which prevents development. The matter is completed.

If the existence of the incumbrance is revealed before the client disposes of the plot the client clearly has the standing to sue for negilgence. If the client sells on and the buyer's conveyancer also fails to spot the incumbrance, end of story as there is no need for the client to sue. The question is whether there is a difference if the plot passes under a voluntary conveyance or on death. Is there a relationship of proximity between the donee or devisee and the conveyancer so that the donee or devisee can sue? My initial reaction was that there was not - see first post - but on further consideration the position does not seem clear cut.
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Re: Can an heir sue for negligence by conveyancer?

Postby dls » Wed Apr 13, 2016 7:20 pm

The ability to sue passes to the estate, but has no attachment to the property.
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Re: Can an heir sue for negligence by conveyancer?

Postby theycantdothat » Wed Apr 13, 2016 8:34 pm

dls wrote:The ability to sue passes to the estate, but has no attachment to the property.


I am certainly not suggesting that the right to sue for negligence attaches to the property. What I am wondering is whether the duty of care extends to the client's nearest and dearest. On a voluntary conveyance or assent there is no investigation of title by the beneficiary. Is it reasonable for the beneficiary to expect that there was no negligence when the conveyancing was done? Say the plot was bought by Mr and Mrs Smith and gifted to their son later after which the incumbrance comes to light. If we ask whether the Smith family has lost out as a result of the conveyancer's negligence the answer has to be that it has. Can it be right that in such circumstances the conveyancer escapes liability?
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Re: Can an heir sue for negligence by conveyancer?

Postby atticus » Wed Apr 13, 2016 9:08 pm

If the thinking was not confused, then the writing of the quoted words was confusing.
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Re: Can an heir sue for negligence by conveyancer?

Postby theycantdothat » Thu Apr 14, 2016 8:29 am

It seems the answer my be found in Clarke -v- Bruce Lance & Co, CA 1988 - [1988] 1 All ER 364; [1988] 1 WLR 881 I cannot seem to find a report or summary of the case online.
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Re: Can an heir sue for negligence by conveyancer?

Postby dls » Thu Apr 14, 2016 5:21 pm

(ahem!!)

Clarke -v- Bruce Lance & Co; CA 1988
References: [1988] 1 All ER 364, [1988] 1 WLR 881, [1989] ANZ Conv R 25, (1988) 85 LSG 37
Coram: Balcombe LJ
Ratio The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the solicitors handled. In 1978 the solicitors were retained by the testator to act on his behalf in drawing up a variation to the lease to include an option to purchase in favour of the lessee at a fixed price. The testator died in 1981. By that time the value of the service station had increased substantially. The plaintiff brought an action against the solicitors claiming damages for negligence, contending that the solicitors had breached the duty they owed to the testator, and to the plaintiff beneficiary knowing that his interest would be affected, and to advise the testator that the fixed price option was an uncommercial transaction.Held: A solicitor had no duty of care to a beneficiary when arranging a transaction subsequent to the will which would adversely affect the value of the gifted property.
Ratio Balcombe LJ said: 'If the defendants were under a liability to a potential beneficiary of the property, it cannot have been to the plaintiff alone. As a matter of logic, the plaintiff, at the time of the grant of the option, was in no different a position vis-a-vis the defendants than anyone to whom the testator might have given the property during his lifetime, or to whom it might pass under his will or intestacy. So if the defendants owed a duty to anyone other than their client, the testator, it must have been to the whole of this indeterminate class of potential donees or beneficiaries. It would indeed have exposed them to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.' He rejected that argument.
. . And 'Far from the interests of the testator and the plaintiff marching hand in hand, there was an obvious conflict of interest. Supposing the defendants had warned the testator that the option he wished to grant Hoare was improvident from the point of view of the persons who might ultimately become entitled to the property after the testator's death, then in the context of the fact that the option formed but one term of a larger transaction (the deed of variation) into which the testator wished to enter, he might well have instructed the defendants to go ahead in any event. But if they owed a duty of care to the plaintiff, they would have been bound to try and dissuade him: an intolerable position for any solicitor.'
This case cites:
    - Distinguished - Gartside -v- Sheffield Young & Ellis ([1983] NZLR 37)
    (New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: 'To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor's professional role in the . .
(This list may be incomplete)
This case is cited by: (This list may be incomplete)

Last Update: 14-Apr-16
Ref: 188810
14-Apr-16
Professional Negligence, Wills and Probate
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