Conveyancing solicitor missed a restrictive covenant

[NatCherry]

We purchased a property with the view of developing the plot as it had lapsed planning for an additional dwelling in the garden. However there is a restrictive covenant on the property (missed by our conveyancing solicitor) and the neighbours are the beneficiaries. They have requested a substantial figure (£75k) to allow us to build and our pockets are not able to to handle this. We believe it is down to our conveyancing solicitor and company to resolve this as they missed the covenant, and we have appointed a litigator to attempt to resolve this. However 2 years later and many thousands of pounds lighter we are no closer to a resolution as the conveyancing solicitor refuse to admit liability and are questioning that amount required (their surveyor briefly assessed our loss as minimal!). Our loss, as assessed by our surveyor before we had negotiated with the neighbours was high (£90k) as the land had lapsed planning, but we are getting lost and tied up in the legal speak and red tape and unable to see what we are entitled too! We have been offered a low figure of just over £20k by the conveyancing solicitor, but this will not enable us to build as we will have to sell the land to pay the remaining amount the neighbours want. We have also got planning for the new house from the council (another mine field) but we are a bit unclear on how to proceed! Does anyone have any thoughts on this or similar stories?

[Tools]

Re: Conveyancing solicitor missed a restrictive covenant

Hi and welcome to Legalbeagles.

Land disputes are generally costly, lengthy and extremely complicated, this is why it pays to use a good conveyancing professional (not saying you didn't)

If the original solicitors carrying out the conveyancing missed the covenant, then I agree they have been less than thorough. What stage are you at now with your dispute, have you lodged a complaint with the Law Society, Solicitors Regulation Authority or Legal Ombudsman?

Interested to hear more.

[NatCherry]

Re: Conveyancing solicitor missed a restrictive covenant

Hi, On the advice of the current litigator (we are not legal savvy) we have had losses assessed by an independent surveyor, sent a pre-protocol letter of claim to the conveyancing solicitors and they have refuted it, but they say it makes commercial sense to settle this hence the offer we received. I have spoken to the legal ombudsmen and they have said they could help with this case, but they can not reward damages at the figures required (£50k is the max and we would have to deduct all our legal costs so far so we will incur a loss no matter what) so we are best carry on along the route we are on. Also the SRA seemed to think they couldn't help as it was not dishonesty or stolen money... although I did get tangled up reading their information after speaking to them and they referred me to their website. The Conveyancing Solicitor (CS) are a well known large firm here and it was a genuine mistake (which she verbally apologised for) but this doesn't help us move forward from where we are. The next steps are looking at mediation but we have had a letter from the CS (who are acting for this themselves and not using the insurance company) saying they are not prepared to meet as their surveyors opinion was that we haven't suffered a loss. I have asked about issuing a complaint against the company but was told by our litigator that this wouldn't help matters!

Thanks for any advice!

[Crazy council]

Re: Conveyancing solicitor missed a restrictive covenant

hi

saying they are not prepared to meet as their surveyors opinion was that we haven't suffered a loss.

You are allowed a fully copy of this report from there survayor. make sure you have it, any surveyor is also insured against mistakes, and can be challenged through there regulators.

If they have missed a restrictive covenant, then they owe you the difference between sale price with, or without this covenant.

Whats not at question, is they have made a serious error,

All that needs deciding is, what the cost of the mistake is.

Re- there insurance co.

They usualy have block insurances, with a much higher claim penalties. They may be dealing with it so they dont have to make a claim against there block policy.

[des8]

Re: Conveyancing solicitor missed a restrictive covenant

The Conveyancing solicitor is claiming it makes commercial sense to settle (out of court).
This might be so for them, as you say they are a large concern.
Their Professional Indemnity policy will carry an excess (just like a motor policy).
This excess is likely to be at least 1% of their annual turnover.although they may have selected a higher amount.
By offering you a small amount to settle they may hope not to have to go to their insurers, because as CC says they will pay a much increased premium next year.
You can see if the conveyancers are in the top 200 earning solicitors, and roughly what their t/o is here: www.conscious.co.uk/site/clientsarea/top_200

[NatCherry]

Re: Conveyancing solicitor missed a restrictive covenant

We have asked for a copy of their report, but I believe they only have a surveyors preliminary opinion and to date we have not seen it (our litigator has requested it). Our surveyor has assessed many losses for us including the reasonable cost of buying the covenant our with or without planning and the CS have taken the lowest figure mentioned (which is the reasonable value of buying the covenant out without planning permission) prior to us even discussing this with our neighbours and decided that is the cost we are pursuing (not the £90k in our Pre protocol letter). We are just getting confused with the actual figures we should/are entitled to seek - is it the amount requested by our neighbours, or the loss in what we thought we bought and actually bought, or the reasonable price for the covenant??? The solicitors can't even agree on how to assess the loss as ours says the loss is the difference in the value of the house when we purchased it with and without the ability to build in the back garden, while the other solicitor says that the loss is the difference between the true value of our house and the price we paid! The CS are happy to mediate but won't meet us half way they claim as they have been told that our loss suffered is minimal. The insurances are also confusing but getting people to agree in law seems to be impossible.

[NatCherry]

Re: Conveyancing solicitor missed a restrictive covenant

Thanks for the info on the policies, I had a look on the website and yes the CS company are within the top 100 so they are likely to have a very high excess, way above our claim if I have worked it out correctly! This might be why they are so reluctant to accept the claim for our loss, as its coming out of their pocket. I guess we have to keep trying to get them to see sense at the mediation, but it seems a bit like David and Goliath at the minute!