Climate Change Duty Of Care – Negligence Claims Against Solicitors & Conveyancers Advising On Property Purchases

For a long-time now, there has been much discussion around the subject of climate change, and how it impacts pretty much every sector worldwide.

Closer to home, the UK has experienced some extreme weather patterns in recent times due to climate change with wetter and stormier winter months and then drier conditions during the summer. For example, last summer, the UK recorded temperatures over 40°C for the first time.

The impact of climate change on property and land

These weather conditions have had a damaging impact on land and buildings. According to statistics released by Sedgwick, a firm of loss adjusters and claims handlers who look after claims on behalf of insurers, there has been an estimated increase of 300 to 400% in the number of insurance claims for property damage from subsidence because of the summer water drought.

Looking forwards, should we continue to experience similar weather conditions, it could put millions of property owners in a very difficult position with the properties being at significant risk of flooding, coastal erosion, or subsidence.

This view is supported by figures (based on information provided by the Met Office, British Geological Survey (BGS), and other organisations) published by Groundsure ClimateIndex™. This data estimates the number of properties affected as a result of climate change-related factors in the short- and long-term:

Put simply, climate change could result in properties depreciating in value or being lost altogether. In extreme cases, it could result in a person losing their life (e.g., coastal erosion). Accordingly, climate change presents significant issues for property owners.

It may also potentially lead to problems for those who advised on a property purchase (e.g. solicitors or conveyancers) where they did not warn a prospective buyer about climate change-related factors and risks.

Potential negligence claims against solicitors for not advising a property owner about climate change risks

Whilst there appears to be little, or in fact no, case law that shows that a solicitor or law firm has been found to have acted negligently in advising a property owner about climate change threats, the landscape in relation to this subject is constantly developing. Consequently, conveyancers, solicitors, and law firms owing their clients a ‘climate duty of care’ when advising on property purchases should be more of a priority.

Articles published by Professor de Gay and Stephen Tromans KC have raised the point that all solicitors, not specifically just those advising on residential and commercial property transactions, owe a climate duty of care to their clients.

Stephen Tromans KC was instructed by Groundsure to provide guidance as to whether a climate duty of care existed between property solicitors and conveyancers and their clients. Secondly, if it does exist, what practical steps need to be taken to remove this duty. A full copy of Stephen Tromans KC report can be read .

Could someone bring negligence for a breach of a climate duty of care?

When a person is considering pursuing any sort of professional negligence claim, the first thing that specialist lawyers will do is consider the various hurdles that must be overcome to succeed in such a claim. The first of these hurdles is to prove that the professional owed a duty of care to the person making the claim.

Establishing a duty of care can sometimes be straightforward. If, for example, a person or company has instructed solicitors to advise them on the purchase of a property, it is well established that the solicitor will owe their client a duty of care to ensure that their client takes the property free from all encumbrances and/or is aware of anything that might negatively affect their ownership of the property.

In respect of climate change, at the time of writing, establishing this duty of care is not as straightforward due to a lack of case law and judicial guidance on what might be expected of a reasonable solicitor exercising reasonable skill and care. Until more recently, it would have been seen by many as unlikely that a solicitor or conveyancer’s duty of care to a client purchasing a property included them advising on climate change factors and risks. But, in reality, it is easy to see how not advising on relevant climate change information to a property-buying client might be perceived as being negligent, particularly where the property might be subject to specific climate change factors like flooding and/or coastal erosion.

A conveyancer or solicitor’s duty of care when advising a client in a commercial or residential property transaction comes from its role to ensure that the buyer is protected against future risks that arise from the transaction. It would be expected that a conveyancer or solicitor would make the necessary enquiries and searches and make their client aware of the results. This duty is likely to be enhanced going forward particularly as new developments in environmental searches are made. This includes making the client aware of any potential risks associated with the transaction which should be obvious to them (but may not be obvious to the lay client) and ensuring the client is fully aware of the risks and advice.

As referenced above, with climate change, clearly having an impact on land and property across the country, conveyancers, and solicitors now need to consider advising their clients of any associated risks.