To search or not to search?
It is the responsibility of a buyer’s solicitor to make the appropriate conveyancing searches in the purchase of a property. Whilst it is widely accepted that solicitors carry out all of the ‘usual’ searches such as the search of the local land charges register, enquiries of the relevant local authority, drainage and water enquiries, to name a few, there is a myriad of less well known and unusual searches now available to solicitors from various search providers.
The issue for solicitors and buyers is determining which other searches are relevant and should therefore be carried out. Should solicitors simply carry out all of the available searches but decline to comment on the results of those which are outside of their expertise? Or should they inform their client about the searches available, requiring them to choose those they’d like carried out on their behalf?
In a recent High Court case, a buyer’s solicitors failed to disclose information regarding developments which were planned on the same street as the property being purchased. The information had been obtained via a planning search report, and the firm of solicitors had not informed the buyer of the contents of the report. The court, however, deemed the details obtained from the report as information that should have been brought to the attention of the buyer and so the solicitors were found to be in breach of duty.
The interesting issue, therefore, concerns whether solicitors are increasingly coming under pressure to commission more obscure searches simply because they are available. Take the example of a ground stability search, which is likely to only be carried out if the property in question may be affected by natural ground movement. It will identify historic underground workings which have resulted in ground stability hazards. Clearly this search will not be relevant to all conveyancing transactions but it is likely that providers will encourage solicitors to carry out the search in order to best inform their clients.
Where should the line be drawn? Where are solicitors left in terms of potential liability, should they opt to not carry out unusual searches such as this? It is interesting food for thought.