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Conveyancing

Off-plan buyer – register a notice

What happens if an off-plan buyer exchanges contracts, pays a deposit, and then the developer goes bust?

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Enquiries – non-reliance clause

The general rule is that you cannot rely on a ‘non-reliance’ clause if it turns out there has been a misrepresentation in the replies to enquiries.

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Fraud – buyers’ solicitors liable!

Last month we noted the important – and worrying – case involving Mishcon de Reya, who acted for an innocent buyer in a conveyancing fraud (with the fraudster using false ID to sell someone else’s property). The seller’s solicitors admitted they had not carried out full ID checks, but it was the buyer’s solicitors who were held to be liable. They had not been negligent, and had acted both reasonably and honestly. But, since they were better placed to bear the loss (ie they were insured) they were held to be liable.

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Enquiries – ‘not so far as we are aware’

It is not uncommon, especially with commercial pre-contract enquiries, for a seller to respond ‘not so far as we are aware’. But, such an answer should not be given as a lazy way of trying to avoid liability – there may be liability for misrepresentation if reasonable checks have not been taken to ensure that the reply is accurate.

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Property fraud – seller’s solicitor

While the Mishcon de Reya case has created great uncertainty about the liability of a buyer’s solicitors when there is a property fraud, so another case has raised uncertainties about the liability of the seller’s solicitors.

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Japanese knotweed – private nuisance

In an important case, a county court has held Network Rail liable after Japanese knotweed got into the foundations of homes adjoining railway land. The owners of the properties had been ‘trapped’ by knowledge of knotweed, and could not sell because banks and mortgagees would not grant mortgages on affected properties. After a four-day county court hearing, it was held that there was private nuisance, with Network Rail having to pay damages.

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Fraud – who is insured?!

Frankly, it is difficult to know what to make of the latest High Court decision on conveyancing fraud. The facts were fairly typical, with a fraudster using false ID to sell someone else’s property. The seller’s solicitors admitted that they had not carried out full ID checks; despite that, however, it was the buyer’s solicitors who were held to be liable. They had not been negligent, and had acted both reasonably and honestly – but since they were better placed to bear the loss (ie they were insured) they were held to be liable. It does seem a nonsense approach.

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Official searches – withdrawal

  It is now possible to withdraw an official search via the portal

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Local searches – VAT

  It goes without saying that the decision by HMRC that VAT should be charged on local authority searches could have been handled far better.

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First registration – copies

An application for first registration can now be based entirely on certified copy deeds and documents.

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