Climate Change Searches -

Climate Change Searches – a cause for good, or an unnecessary burden?

In The Paris Agreement 2015, there was an agreed legally binding agreement on 195 countries on an Action Plan. That plan is for “governments as well as business and investors to keep global warming well below 2°C, pursuing efforts to limit the temperature increase to 1.5°C.”

Note how it’s not just an onus on Governments here but businesses too. As the 2008 Climate Change Act was amended in 2019 to set the net zero targets for the UK, it was only a matter of time before legal businesses would be targeted and investors in property would also feel the effects.

Most agreed legal firms would have to do more like recycling, using less paper and vehicles etc., but the future for conveyancing businesses was about to change in a whole new way.

The New Way:

As we all know only too well, climate change does have an effect on temperatures, and temperatures affect the stability of groundworks and other issues over large areas, and cliff erosion in coastal parts as well as many other issues, flood plains are also re-drawn frequently.

So, it made perfect sense that house-buyers and land / property investors needed to know how their investment would be affected by these changes. But how? Would Conveyancers now have to become Climate experts as well as financial wizards following recent SDLT changes?

From a search providers angle, this represented a whole new world. All searches, be they LLC1, CON29. Drainage, Environmental, mining etc., are all based on current and historical data. From protected trees to contaminated land, all our reports are based on historical fact.

As I said in a recent podcast for National Conveyancing Week – “What if we are wrong?” Since searches began in 1974, we have been safe in our knowledge of proven facts. Now, we are issuing reports based on graphs and projections, that is an uncomfortable position for many of us.

We are now advising buyers on what the ground may look like in 30 years time based on graphs and projections. What if behaviours changes and other factors have the desired effect and the projection line on that graph is inaccurate?

I have had numerous discussions with the Conveyancing Association and UK Trading Standards and I tend to agree that it makes perfect sense for climate change to be in the conveyancing process, but should it be an added burden to conveyancers?, maybe it could be included in the drive for “upfront information” so popular with the Home Buying and Selling Group? Should a climate change report be in the Estate Agents portfolio?

There is no point giving an opinion now on whether climate should be in conveyancing, it is. The question is where? And I, personally believe it should be at the start of the process not near the end. And that means me not selling any of the reports, so I am being completely honest here.

The lawyer says:

All conveyancers and environmental data providers eagerly awaited the Law Society Guidance which was finally issued on 19th April 2023. A 29 page guidance document to cover the entire Legal Industry. Sector Specific Guidance is to follow over the next few months, predicted to be by the summer.

I asked Stephen Sykes, a leading Environmental Lawyer in this area about the new guidance and he answered as follows:

“The Law Society’s climate guidance has been welcomed in some quarters, but not in others. There is no doubt that it adds to the workload of busy conveyancers and solicitors in general.” He added “It would be a profound mistake to think that climate is not a legal issue. This is because it impacts asset value and some clients who aren’t warned about it before they buy their house or commercial property will sue their lawyers. It makes sense for solicitors to take steps to discharge the duties set out in the guidance, and that includes commissioning climate searches so that clients can make better informed decisions”.

Climate Change Searches:

Terrafirma launched a climate change risk assessor for property investors in November 2020. Effectively, the first climate change search. In 2022, Groundsure added a Climate Change assessment for free on all of their main reports. Landmark followed, giving the conveyancer the choice whether to have a report or not.

Landmark added in a recent webinar:

“Solicitors have a general legal duty to exercise reasonable care and skill, and may have to look beyond the narrow scope of an instruction……to consider whether, and to what extent, climate legal risks are relevant. Climate change may have an impact on that duty. The level of risk the client wishes to take after being warned is a matter for the client. It is for the legal firm to have a policy.”

So far, until the specialist guidance is issued, it does not require the lawyer to be a climate expert, if a climate change search is ordered, it should be looked over and passed on with any alarms to the buyer. It may be necessary to suggest that specialist advice is needed.

David Kempster of Groundsure told me: “The new Law Society guidance is very welcome, but it does not change the existing duty of care and duty to warn that conveyancers have been providing through flood and contaminated land information in searches for many years. This is the same process, backed by the same reliance for information looking into the future, so it needs to be treated in the same way.”

HW Conveyancing Searches provide free CPD seminars in partnership with HILS and we had Landmark present on this subject in March, with Groundsure coming on 28th June to our next event.