Defining conveyancers' duty on flooding

As the country’s landscape continues to change, one issue that has become a major factor for any conveyancing transaction is ?that of flooding. Over five million people in England ?and Wales live and work in properties that are at risk from flooding according to the Environment Agency.

Flooding can cause damage to buildings and personal belongings, so it is understandable why many clients are concerned about it.

The physical damage to a property and the regularity on which it may occur can make a property unmortgageable and/or uninsurable. As a result, the property may become impossible to sell or adversely affect the value of the property.

It used to be difficult to establish where the conveyancer’s responsibility would start and end when it came to flood risk. However, at the outset of a practice note on flood risk published by the Law Society, it states very clearly that “Solicitors are not qualified to give advice on flood risk or interpret technical flood reports.” So, then, what is the extent ?of our duty?

The practice note states that when acting for a buyer, tenant or lender you should “mention the issue of flood risk to your client and, if appropriate, make investigations.” The key word here is “mention”. The definition of this word is to refer to something when speaking or writing, often in a brief or casual way. I think this word is used to highlight that solicitors are not professionals when it comes to giving advice on flood risk. Clearly, however, there is a duty to bring it to the attention of the client.

Necessary searches

When acting for the lender, you may be given a clear instruction to carry out a flood search. It is likely, however, that the lender will only specify this as a clear instruction in the event that there is an apparent flood risk, i.e. the property is near a river. In most cases, the lender’s instructions will be silent. The Council of Mortgage Lender’s handbook states at 5.4.1 that you must ensure that all usual and necessary searches and enquiries have been carried out. I think that as the risk of flooding has increased, the flood search has become one of the “usual and necessary searches.”

You should also take particular note of the lender’s building insurance requirements as this may place an additional obligation on you.

Before instructing a flood search or even “mentioning” it to your client, it may be worth carrying out a quick ?investigation on the Environment Agency website which will give information, among other things, on flooding from rivers or sea and the extent of extreme flood. The website does not give information on flood risk associated with ground water ?or surface water although you will be better informed when mentioning the risk to your client.

If a flood search is instructed you would do well to note that different providers offer different information. Therefore, care must be taken to ensure that the search provides the information that best matches your instructions.
A good search will provide information on the flood risk across the board, i.e. rivers, coastal, ground water, surface water and other possibilities; the search will also give an opinion as to the risk and finally, if the property is insurable and on what terms. It is then our duty to provide this report to the client. Remember, we are not qualified to give advice on flood risk or interpret technical flood reports.

Disgruntled clients

Care must be taken then not to be seen to give advice on the flood search. Unfortunately, as conveyancers, we are prime targets to be sued by disgruntled clients who were perhaps a victim of flooding, and blame you for not advising them about it. Your defence must be your filed client instructions and the fact that you supplied a copy of the flood search results, and if any advice was given, it is the client that should have read ?the report.

We conveyancers play a ?crucial role when it comes to flood risk and we are uniquely placed to protect the buyer, tenant or lender whether it is ?just by mentioning the risk in ?the first place, or instructing an adequate flood search; it is our duty to safeguard the client’s interests as best we can within the constraints of our role.