Clients owed a duty of care on climate change risks, say conveyancers
11 August 2022
More than two-thirds of conveyancers think they have a duty of care to advise their clients on the risks climate change represents to property, according to new research.
A poll, undertaken by environmental analytics business Groundsure, asked property lawyers if they agreed that “solicitors owe their clients a duty of care to advise them about the risks that climate change presents to UK land and buildings.” While 32 per cent dissented, 68 per cent agreed.
The poll was among a series of live questions between sessions at Groundsure’s recent Conveyancing Climate Change Conference, held at The Law Society HQ.
During the conference, barrister Stephen Tromans QC explained that the conveyancer’s duty to their client includes drawing to their attention risks, and advising on searches and other steps which can be used to manage risk. This duty can evolve as new risks become apparent, for example as with contaminated land. Climate change now presents both physical risks to some properties and also transition risks for the future as the attitude of lenders and future purchasers hardens. The transition risks are apparent from initiatives within the Law Society and among lenders and financial regulators.
Dan Montagnani, the CEO of Groundsure said:
“The close proximity of the relationship between a lawyer and their client is self-evident. While proving causation can be challenging, the latest climate risk data shows predicted climate impacts on specific, individual properties in an easy to understand format – such as our ClimateIndex™ analysis module.
“The main argument on whether a duty of care applies in respect of climate change may rest on the ‘fair, just and reasonable’ test and the particular circumstances of the case. Given the growing awareness of climate risk in the UK; the likelihood and scale of climate risk; the response of professional bodies and legal commentators; and the availability of data to explain climate risk impacts on specific properties – judges are likely to conclude it would be ‘fair, just and reasonable’ to extend the duty of care which lawyers owe to clients to include a duty to advise them about climate risk.”
Groundsure says property lawyers should proceed on the basis that they owe their clients a duty of care to advise them about climate risk and its legal implications.
Environmental lawyer Stephen Sykes added:
“The climate crisis will have real and significant repercussions for millions of property owners across the UK. While lawyers are not climate scientists, that does not mean that borrowers should be left high and dry to draw their own conclusions about these risks. There is a growing body of opinion that solicitors have a duty to advise clients about climate risk. In light of this, prudent lawyers will follow the Law Society’s exhortation in its Climate Resolution 2021 to become better informed about climate risk and to make good use of climate data now that it is available.”
An overwhelming majority of solicitors polled (94 per cent) said that, bearing in mind the numbers of properties at risk and the PI implications of failing to discharge our duty of care, they would be recommending that their law firm adopts practices and procedures about climate data.
The research also raised a note of warning, however. The conveyancers polled by Groundsure accepted that “Many property lawyers are unaware of the impact that climate change is already having and will have on UK land and buildings through subsidence, coastal erosion and flooding.” More than nine in ten respondents agreed (91 per cent), while fewer than one in ten (9 per cent) disagreed.
Dan Montagnani, the CEO of Groundsure said:
“More understanding is needed on two fronts: the risks to the transaction from climate change; and the potential PI and legal risks to the practice.”
