Following the publication of the Law Society’s Climate Change Risk Property Practice Note, we spoke to two of its contributors, Simon Boyle, environmental lawyer, and Robert Lee, Professor of Law at the University of Birmingham, for their take on what this means for conveyancers.
Landmark’s Sustainability Team has played a key role in helping to shape the Law Society’s Climate Change Risk Property Practice Note. Environmental Law Director, Simon Boyle, and Special Advisor, Professor Robert Lee, contributed to the Practice Note and co-wrote the supplementary Technical Note.
Around six drafts and 18 months later, the Practice Note was published on 12 May. With conveyancers understandably concerned about scope creep, even prior to this new Law Society climate change guidance, we quizzed Simon and Robert about the practical implications of the Practice Note.
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What are climate risks in the context of property transactions?
Prof. Robert Lee: There are three main species of risk. Physical risks involve damage or harm to owned property due to climate change. Transition risks arise from changes made by governments and others on the journey to net zero. Then there are legal risks, whereby individuals or businesses could fall foul of the implications that follow from physical and transitional risks.
What does the Law Society practice note on climate change advise in relation to ordering climate risk searches?
Simon Boyle: I think it’s taken a pragmatic view. There’s a very useful checklist for property lawyers in the Practice Note, which has seven key steps that it sets out. The first one relates to climate risk searches, and it states that these are an option for property lawyers to commission.
When a property lawyer has an initial conversation with the client about the risk in the context of the whole property transaction, for the first time, in most cases, the lawyer will be mentioning climate change risks too. When it comes to the searches, step one is to say to your client: ‘it might be useful to commission a climate search.’ That’s at the top of the recommendations.
Are conveyancers expected to advise on climate change risks?
Prof. Robert Lee: It’s not the lawyer’s job to advise on the technical risk or the nature of those risks. But any client will sensibly expect that the lawyer will look out for the legal implications that follow from that risk and offer practical advice on how one might mitigate those legal risks or liabilities.
What the lawyer is really doing is taking the technical information that comes through the legal search and using that background contextual knowledge gained from client instruction to look at the legal consequences and advise accordingly.
How can conveyancers practically apply the new Law Society Practice Note on climate change?
Prof. Robert Lee: Once we have a Practice Note, that introduces some degree of change and a standard that conveyancers are expected to meet. There are quite definitely things that law firms can do in terms of stepping up to that requirement.
I’d begin with training. Whilst we don’t need to be technical experts in risk, we do need to have some consciousness of the search products out there on the market. You need to be able to have a conversation with your client to say, ‘I’m wondering about a climate search and here’s why.’ You could even script this initial conversation.
You also want to be very clear about the extent of your instructions in this area. Again, you could have some form of wording about what it is you will do and what it is you won’t do in relation to climate change risk. We can also start thinking now about how we would cover climate-related issues in any report on title and reduce that to some form of standard wording.
Some of this must be sensibly defensive on the part of the conveyancer, so I would also be documenting advice and assistance over time.
What if a conveyancer needs more information following a climate risk search?
Simon Boyle: Landmark has a helpline and an excellent customer services team that is here to help. If you order a climate risk search from us and have any questions about it or have any points for clarification, then the Landmark customer services team can give you the information that’s required.
As it’s such a new area, there may well be some questions that even our customer services team won’t be able to answer. They can then turn to our 12-strong Sustainability Team, so we can answer any question that comes up. We recognise that quite often people need to come back and ask for more information. Especially several years down the line when things may be different.
Where can conveyancers access climate change training?
Simon Boyle: At Landmark, we’ve put a lot of store in providing training materials on climate change. We have our Landmark Academy, which Robert is the chair of and has provided a number of lectures on climate change. We already have a huge amount of information on the Academy, which is freely available for anyone to access and get that more in-depth understanding.
The other thing we do is provide face-to-face training for law firms. We can do this on Teams, but we can also, and regularly do, go and see firms face to face. This gives us an opportunity to meet everybody and have in-person discussions, which I think is the best way of providing this training.
Find out more about our market-leading Climate Change Risk Management Services, Climate Change Reports and Sustainability Training Services. Alternatively, if you have any climate change queries, please contact our customer service team on 0330 036 6619.
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