The Law Society will today (12th May) publish its climate change practice note, and can expect a mixed reaction from the profession if the response echoes the guidance published in 2023.
While some believe risks associated with climate and the expectation that conveyancers should be climate change soothsayers are beyond the scope of the profession, others insist the millions of properties exposed to potential damage brings the topic firmly within the conveyancing remit.
When the consultation was announced in September last year, much of the industry response to the coverage was negative. Commentators said the Law Society ‘has got this very wrong’, and asked ‘why anyone feels that conveyancers – whose job it is to do the legal work relating to a property, nothing more, nothing less, are being burdened with climate change?’.
‘This is yet another example of the ridiculous state that conveyancing has got into,’ Arthur Robinson of Emmerson’s Solicitors said in response to the announcement. He continued:
“The only thing that any conveyancer should be saying to any prospective purchaser of property is, ‘Climate risks may affect the prop you wish to buy. You should take help from an expert on climate and environmental risks to assess the particular risks associated with the property. We cannot advise on these risks as they are beyond our expertise.”
The practice note will build on the guidance the Law Society published in 2023, in which conveyancers were told it was their duty to advise clients on climate legal risks when acting in transactions – with the caveat to ‘not advise on climate change physical risks where it is outside their knowledge or qualification’.
A subsequent consultation, designed to inform the detail of the practice note, considered:
- How climate change and its associated risks are impacting the UK’s property stock.
- Understanding solicitor duties related to climate risk and liability.
- Communicating climate risks to clients, lenders, and other stakeholders.
- Navigating climate-related searches and advising clients on how to act on the results.
Speaking at the time, Law Society vice president Mark Evans explained:
“The Law Society wants to support solicitors by providing guidance that helps them navigate this important and complex topic. We have been working with conveyancing and environmental groups to explore how a new climate risk and conveyancing practice note could support members with their professional duties and best practice.”
It is understood the practice note will provide property specific guidance for conveyancers covering three main areas of concern. The first is the physical risks posed by climate change, which have so far focused on flooding. However, the practice note is expected to discuss the impact of coastal erosion, heat stress, drought, wildfire, sea level changes and extreme weather conditions.
It is also expected to cover the impact of policy and regulatory decisions on net-zero and climate, and provide practical ways in which conveyancers can tackle the issues through contracts, advice and retainers.
Last month, the Climate Change Committee (CCC) set out the some of the increased risks it has identified for the UK in its latest progress report:
- Around 6.3 million properties in England already at risk of flooding from rivers, the sea and surface water, rising to eight million – 25% of all properties – by 2050.
- A further 45,000 properties at risk of coastal erosion over the same period, ‘depending on how coastlines are managed’.
- More than 6% of properties ‘highly likely’ to be affected by subsidence by 2030, exacerbated by climate-related changes in rainfall and drought patterns.
- A 25% increase in buildings experiencing severe wind-driven rain in some regions under a four degree warming scenario.
- An 11% increase in the prevalence of overheating in housing, with data from the Energy Follow Up Survey revealing 12% of households reporting at least one part of their home got uncomfortably hot in 2023.
The CCC recommends a long-term cross-sector plan to manage future heat risk – but with only 0.4% of homes in the UK achieving an Energy Performance Certificate (EPC) rating of A, it seems there is a long way to go.
An assessment of ONS data by the private rented housing provider UNCLE revealed that fewer than 100,000 homes achieve the highest EPC rating. More than 56% of properties scored ‘D’ or lower, with 1.3 million homes rated as F or G. ‘This could be due to a lack of insulation, old single-glazing windows or inefficient heating systems such as old boilers’, a spokesperson said.
The CCC says there is now unequivocal evidence that climate change is making extreme weather in the UK more likely and more extreme. Figures published by Aviva in October last year revealed that 40% of UK homes have experienced the impact of extreme weather in the last five years, 22% have suffered storm damage, and 12% have experienced a flood.
Today’s Conveyancer will publish full details of the practice note, along with further commentary, following its release.
