Negligence solicitor Emma Slade continues her blog with some thoughts on a solicitors negligence case involving a right of way.

I think I mentioned before that certain types of solicitors negligence claim seem to come along like buses – you don’t see one for ages and then all of a sudden, loads turn up together.  I have been instructed on a number of cases recently where the purchase of a property has gone wrong.  A couple of them have been in respect of commercial property, but one of them is in respect of residential property which is a lot closer to home for my client.  In fact, it is his home.

About five years ago, the client (who I shall call David) purchased a new build house in a development on a small close.  There were only five houses on this plot which had originally been a small Council office and had been demolished.  To get all five houses onto the plot, the developer had built them along one side of the site with a road through the middle.  The other side of the road was derelict but, it was believed, still within the plot owned by the developers.  Maybe the developer intended to put further houses on that side of the road.  I don’t know.  However, to get to David’s house and indeed, the other four, you had to drive or walk down the new road.

Everything was fine for a couple of years until out of the blue, David and the other house owners got a letter from the local Council saying that, contrary to what was believed, the derelict land and the land that the new road had been built on, belonged to the Council, not the developer.  David was trespassing on their land each time he used the road!

David and the house owners instructed a local solicitor to try and sort out the problem with the Council and the developer.  The developer did make a number of proposals including purchasing the land from the Council but for some unknown reason, the Council would not play ball.  In fact, it went so far as to block the road so it could not be driven on.  David had to park on the street and walk along the edge of his neighbour’s gardens to get to his house.

I was instructed very late in the day to give consideration as to whether or not David had a professional negligence claim against his conveyancing solicitors for not noticing this problem.  Without access, his property was virtually worthless and whilst the discussions with the Council rumbled on, he wanted to know if he could get recompense from the original solicitors.

To bring a claim for professional negligence, you have to show that a reasonably competent solicitor would not have made the same mistake that the negligent professional did.  I therefore had to look at the papers in that light.

The solicitor had obtained all the relevant paperwork from the developer.  He had obtained a copy of the deeds which showed a plan of the plot that the developer had bought; he had also obtained a plan from the developer, identifying the five houses and the plot that would be David’s.  The first plan showed the entirety of the plot which abutted against the adjacent houses.  The second plan clearly showed five houses, a road in the middle and then a large, blank unbuilt area before the plot ended next to the adjacent houses.  It didn’t make sense: the plans looked identical.

However, it was only because I was alert to the fact that there was a problem that I looked very, very carefully at the plans and realised why an error had occurred.

The plan that the developer sent showing the five houses had been prepared by an architect.  He had showed the adjacent houses and had numbered two of them so I could work out that the last house at the edge of the plot was numbered 22.  Looking at the original plan on the sale of the Council’s office, after a bit of counting, the adjacent house was numbered 26.  Somewhere along the line, it looked like the Council had purchased houses 24 & 26 and demolished them, probably when they demolished the Council office, leaving derelict land which the developer  had presumed belonged to him.

As I said, I was alert to the problem so could see where the error had occurred but looking at it with the eye of the original conveyancer and comparing the two plans, it simply could not be spotted and the conveyancer could not therefore be considered negligent.  To add insult to injury, the conveyancer had been very good to ensure that David had a right of way over the road!

So in this instance, there is no negligence claim against the solicitor; all David can do is bring proceedings against the developer for breach of contract in failing to give him good title. 

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