Solicitors and property practitioners are not expected to be experts in environmental law but they must advise clients on the potential impact of climate change on property transactions and signpost them to further resources should the issue arise.
In a panel discussion at the Law Society’s Property Conference, the message was clear and practitioners are encouraged to take part in the current consultation into providing clearer guidance ahead of the publishing of a practice note on the topic.
The Law Society launched the consultation in September to seek views on the proposed practice note which will provide practical guidance on:
- 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.
The consultation will run until 31st October 2024 and respondents can contribute via The Law Society’s website.
Be clear about what risks there are, clear about what your instructions are, and what you’re going to do, and retain contemporaneous notes
There was acknowledgement on the panel around the continued work required to support practitioners with the topic; a short discussion on leasehold properties highlighted liabilities with regards responsibility for damage caused and who makes the claims in the event of a climate change related issues; and practitioners are reminded to check the UK finance handbook and lender requirements.
Ultimately practitioners have a professional duty to explore climate change concluded Davidson and the practice note will provide some clear steps on what best practice around that will look like.
The Law Society confirmed the new guidance is planned to be launched in January 2025 once the consultation closes and the results have been reviewed and collated.
10 responses
The actions of the Law Society are inexplicable for a ‘representative’ body.
These actions are contradictory and increase the prospect of claims for professional negligence.
What on earth was the Law Society thinking?
Yet another task for conveyancers is not great, but (as an attendee at yesterday’s conference) it was a very interesting panel discussion and I learned a lot about the climate change issues for home buyers and sellers in the future and the role conveyancers could play in helping protect them.
“It was a sentiment echoed by David Kempster, Marketing Director at Groundsure who added the expectation was not on firms to be climate change experts, rather – like contaminated land and flood risk – to advise on the potential risks and point clients in the direction of resources and expertise to help.”
How can anyone advise properly on the potential risks if they are not considered an expert?
This is an obligation imposed by The Law Society because someone thinks it’s a duty of a conveyancer to advise on something they know nothing about. The difference between other risks such as contaminated land is one can say that there is evidence of or no evidence of contamination and to whom the client must speak.
Who can say how climate change may affect the home owner and who is an expert on what will happen? Until “it” happens it’s all guesswork.
This was an excellent session at The Law Society – as the whole conference was. Lots of views put forward – and they were listened to. Conveyancers are key to protecting both buyers and sellers and reducing the risk of a purchase or sale. They do an amazing job at securing much needed information on a property and it’s finance..and with lenders, BTL investors and owners being tasked with EPC C ratings, the increase in flooding, the fact that 40%+ homes will be 100 years old in the next decade or so, everyone in the buying/selling chain needs to support their clients decision as much as possible. For those that were at the conference this was a session where solicitors views and concerns were listened to following a debate with really good experts.
The key messages were less alarming
– solicitors do NOT have to advise on climate physical risks
– you can remove PI risks with simple actions
Firms should add simple disclaimers in their reports on title
(1) a general warning that CC can have a significant impact on property value and the ability to sell, lease or get finance or insurance
(2) highlight that the envl search includes info on future climate risks (or recommend a separate climate risk)
(3) if the search highlights an obvious red flag climate risk, just draw that to their attention and recommend that they contact the desktop provider for advice
(4) the Law Society Guidance and PN make it very clear that lawyers are not qualified to advise on climate physical risks
If your client doesn’t want an envl /climate search (eg for cost reasons or a developer has consultants doing separate investigations), just record that in the LoE or RoT (“You have instructed us to not obtain an environmental /climate desktop search. Please note that CC can have a significant impact on property value and the ability to sell, lease or get finance or insurance”).
Alternate headline – environmental lawyer attempts to justify poor career choice
Mr Davidson
Forgive me but your comments are naive.
I have seen Counsel in court tearing such qualifications apart. You are aware that they are subject to Consumer Contract Regulations and the test of ‘reasonableness’.
Mr Robinson is right.
Why is no one taking this to government? Councils are happily allowing developers to build on known flood plains. What is the point when care and consideration is not mandated at acquisition stage and developers are allowed to continue building on such places by Councils? Don’t pass this onto us conveyancers- consideration for climate change starts before one brick is laid. Not to mention Britain’s crumbling infrastructure that’s not designed to take the onslaught of rain – surface water flooding is a real issue as councils allow more and more land to be covered in concrete. Whilst you’re at it Law Society I’m sure you could provide some tech or guidance in predicting the apocalypse.
What the society should be doing is providing clear templates for firms to carve out such items from the retainer and place them with someone suitably qualified.
We should not be acting as sales agents for search providers.
Why is there so much emphasis on advising buyers who may purchase property subject to risk due to climate change issues? Where are the checks and balances?
What about homeowners trying desperately to dispose of their properties or re-finance? Their properties may be blighted by this growing pre-occupation with climate change risks Law Society Guidance would have us all add to our terms of engagement and property reports.
Has the Law Society helped by instructing Counsel and publishing some template wording so property solicitors can simply and effectively exclude liability for climate change advice from their scope of work? No. It just pens paragraph after paragraph about how difficult it is to exclude liability.
Why? The Climate Change Resolution. It reads like a manifesto: https://www.lawsociety.org.uk/topics/climate-change/creating-a-climate-conscious-approach-to-legal-practice#download-the-resolution
It’s one thing for TLS to pass a Climate Change Resolution that adopts “science based targets for our own business operations”; quite another to smother solicitors systematically with a whole raft of new obligations, including: “approaching any matter arising in the course of legal practice with regard to the likely impact of climate change on society and legal practice”, and tells us to advise clients on
“ways which mitigate the effects of the climate crisis and promote adaption to climate change”.
The full guidance is excessive, far beyond any reasonable expectation of the solicitor’s role in home buying and selling: https://www.lawsociety.org.uk/topics/climate-change/impact-of-climate-change-on-solicitors