House Purchase Flawed Advice

[neversay]

We have just received a letter from our local Council regarding money to survey our road for possible adoption and stating the street is currently unadopted. Going back through our house purchase material (four years ago) we have a letter from our Solicitor clearly stating that their searches showed the road is adopted. It seems that was an error (possibly negligent) and now we are potentially liable for thousands of pounds in costs to upgrade the road and drainage at some point in the future. Should I take up the matter formally somehow?

Thanks,

N.

[Clitheroekid]

Should I take up the matter formally somehow?

Yes, as you will almost certainly have a remedy.

The information provided by your solicitor would (or should) have been derived from the `Local Search' that they carried out with the Council.

So on the face of it the Council provided the wrong information. If so, they are liable in negligence, and they must compensate you for losses you incur as a result.

It's theoretically possible that your solicitor may have either not made a Local Search at all and assumed the road was adopted (very unlikely) or misread the answer on the search and misinformed you. If so, they would be negligent and equally liable to compensate you.

The first step is that you should write to the solicitor, enclosing a copy of the letter from the Council, and ask them to send you a copy of the Local Search, saying that you are intending to make a claim against the Council. You can then check for yourself whether it was the Council or the solicitor that was at fault.

Assuming it was the Council's fault the solicitor may well offer to represent you in making a claim. However, this would almost certainly be at a net cost to you, and as it sounds like a fairly straightforward claim you may well be able to handle it yourself (perhaps with some Lemon Fool assistance!) and save a considerable amount.

You should also check to see if you have any legal expenses insurance. Many people have this through their house contents policy without realising it, and although it's often useless it may assist in a case like this.

[Dod1010]

It is even simpler than that. The claimant should write to the Solicitor who acted in the house purchase and enclose a copy of their letter saying in effect 'you told us that the road was adopted' and see what they come back with. It is not necessary for the claimant to get involved with the Council, only for the Council to come back and say 'Who told you that?' The claimant was relying on the professional expertise of his solicitor and it is to them that the claimant should turn. It is then up to the solicitor to come up with a defence if they have one, but that is why one employs a solicitor in a house purchase; so that he will go through the title and advise on any pitfalls. if they did indeed positively say that the road was adopted that was obviously wrong advice and it seems to me, where the claim lies.

Dod

[RedSnapper]

It is even simpler than that.
Dod

I think you're missing some of the subtlety of CK's suggested approach. The OP needs to establish who is at fault. It is likely that it is either the council (for supplying a factually incorrect search on which the solicitor and OP were entitled to rely) or the solicitor (for misinforming the OP on the back of a correct search).

CK's approach will establish who is at fault. If it is the solicitor then it is highly likely they will simply cop to it. If it is the council then the solicitor will most likely point this out and offer to sort it out (for a fee). At that point the OP can decide whether to use the solicitor or to deal with it themselves.

[Dod1010]

I do not think that OP need concern himself with the Search. If the solicitor gave incorrect advice, or gave advice in good faith but it turned out that the basis of that advice was incorrect that is not the fault of the OP. Had he not been relying on the solicitor's advice, he would have done the search himself.

If I employ a solicitor and cannot rely on his advice why would I bother? If the solicitor was relying on advice (the Search) which turned out to be incorrect that is his problem and he has the remedy of seeking restitution from the Council or whoever is responsible for the Search. That is how I would pursue it anyway.

If the solicitor stated without qualification that the road is adopted, that to me is that. Had he wanted to cover himself he could have said something like 'we are though relying on a search certificate which may or may not be correct and cannot accept any responsibility if it turns out to be incorrect'. I wonder what the law actually is in this situation?

Dod

[chas49]

We have just received a letter from our local Council regarding money to survey our road for possible adoption and stating the street is currently unadopted. Going back through our house purchase material (four years ago) we have a letter from our Solicitor clearly stating that their searches showed the road is adopted.

Have you spoken to your neighbours yet? What were they told when they bought? This may throw some light on the truth before you are able to contact the solicitor.

[Clitheroekid]

I do not think that OP need concern himself with the Search. If the solicitor gave incorrect advice, or gave advice in good faith but it turned out that the basis of that advice was incorrect that is not the fault of the OP. Had he not been relying on the solicitor's advice, he would have done the search himself.

It's not as simple as that. If the search result was incorrect and it was accurately reported to the OP in good faith by the solicitor then the solicitor has not been negligent.

I would therefore reiterate my original suggestion.

[neversay]

Many thanks for your very kind responses.

The road is definitely private and the letter from the Council is suggesting that they part fund the survey to investigate the full cost of having it formally adopted. Assuming all neighbours say yes, then it sounds like £2k per household just to do the survey alone and, no doubt, many thousands to actually do the work to have it actually adopted. It's not in bad condition but the drainage could be an issue and two neighbours that resurfaced their frontages paid £7k each. So it being private is significant.

I do believe it's an error on the Solicitor's part, but do like the gentle first approach of asking them to send me a copy of the Local Search and take it from there. So I will give that a try and report back, unless anyone wants to talk me out of it!

My home insurance does have legal cover but it states that are only allowed 180 days 'after the cause arose' which sounds like it could preclude this case.

Many thanks,

N.

[Clitheroekid]

My home insurance does have legal cover but it states that are only allowed 180 days 'after the cause arose' which sounds like it could preclude this case.

Legal expenses insurance is basically a marketing device for solicitors. The way it works is that certain firms pay a substantial annual sum to the `insurers' to be placed on their panel. Then when someone with a policy calls with a problem it's vetted as to whether it's likely to be one that can make money for the solicitors.

If it is, you will be told that you have to use one of the insurer's `panel' solicitors. They will then represent you free of charge on the basis that they can recover the legal fees from your opponent, and thereby make money out of the case.

Unfortunately, for various reasons it's becoming more and more difficult for solicitors to make any decent money out of low value litigation, so sometimes people with legally sound cases are told their case isn't strong enough to qualify for help under the policy.

The reason I'm telling you this is that you may need to prepare to have your claim rejected even though it sounds to be a perfectly good one. In my experience, if you create a fuss and insist on your rights they will usually give in.

The question of when the cause arose is something by which they may try to escape liability. They may argue that the claim arose 4 years ago, when you bought the house, but that's an inherently absurd argument. How can you make a claim that you don't even know exists?

Consequently, if they do raise that as an excuse you should argue that the 180 days can by definition only run from the date that you first became aware that you had a potential claim. Again, I suspect that if you insist on this, and threaten to take the case to the Ombudsman if necessary, they will give in.

Legal expenses cover is definitely worth having, as it can save you a lot of money, so it's worth putting some effort into making them agree to take the claim on.

[neversay]

I can't tell you enough how grateful I am that you (and the others here) take the time and care to write such a kind and considered response. That's great advice - thank you.

[Dod1010]

OK. Thanks CK.

I am intrigued as to why the Council would voluntarily wish to adopt the road anyway, especially in these days of financial austerity because even if a lot of the costs may be passed on to the owners of properties on the road, the Council is bound to incur costs and the time of their staff. Then they will incur the cost of maintenance after that.

Certainly in my part of the world we have several unadopted roads that I know of and I cannot see our Council wishing to take them on when currently it is up to the owners who have frontages on the road to maintain them.

Dod

[neversay]

I agree, it isn't practical given all the other constraints on the Council. In practice it's very likely to happen as it would take 40 property owners to all commit to spending £2k for the survey and then part-fund the upgrades - presumably well in excess of £10k per household.