Found the conveyancing problem when selling? How the time limits work

The pattern is familiar. You bought a house, and years later a buyer's solicitor raises a question about a missing consent, a covenant, a right of way or a defect in title. Or you plan an extension and discover a covenant that forbids it. The sale or the project stalls, and the natural assumption is that the clock for a claim against your conveyancer started now. In most cases it did not.

This guide covers what is specific to conveyancing. For what conveyancers commonly miss, see the series overview; for the general rules and how the date of knowledge is assessed, see time limits for professional negligence claims and found the defect years after buying.

Two claims, two clocks

A claim against a conveyancer is usually brought in both contract and negligence, and the Limitation Act 1980 treats them differently.

• Contract (s.5): six years from the breach. The breach is the failure itself: the report on title that missed the covenant, the search not done, the question not raised. In a purchase that is usually on or before completion.
• Negligence (s.2): six years from when the cause of action accrued, which in negligence means when you first suffered actual damage.

Only the negligence claim gets the extra protection described below.

Why the loss is usually suffered at completion

The leading authority is Forster v Outred & Co [1982], in which the Court of Appeal held that a client who mortgaged her property on negligent advice suffered damage when she signed the mortgage deed, not years later when she was called on to pay. Her property was encumbered from that moment.

In conveyancing, the same reasoning usually points to the date the flawed purchase went through. In Maharaj v Johnson [2015] UKPC 28, the Privy Council reviewed the English authorities on a purchase where the conveyancing was defective. The buyers discovered the problem 22 years later, when a lender's lawyers refused to certify their title and their own sale fell through. The Board held that they suffered actual damage when the conveyance was executed in 1986. They had received something worth less than what they should have received, so their claim in negligence was time-barred. The Board also noted that, had the case arisen in England, the fifteen-year longstop would have ruled out any reliance on the three-year knowledge rule.

The House of Lords in Law Society v Sephton & Co [2006] UKHL 22 showed there are exceptions where the loss is genuinely contingent, and the question is always fact-sensitive. But the starting point for a defective purchase is that the six years in negligence ran from completion, much like the contract claim.

The three-year knowledge rule

Where the six years have gone, s.14A may give a second chance: three years from the earliest date you had the knowledge needed to bring the claim. That means knowing the material facts about the damage, that it was attributable to the act or omission alleged to be negligent, and who the defendant is. You do not need to know that the conveyancer was negligent as a matter of law (s.14A(9)).

Two points matter in the selling scenario.

• It applies only to negligence. Section 14A applies to "any action for damages for negligence", so it does not rescue a claim framed only as breach of contract.
• Earlier knowledge can count. Knowledge includes what you might reasonably have been expected to find out from facts observable or ascertainable by you, or with appropriate expert advice (s.14A(10)). If the report on title, a letter from a neighbour or an earlier planning enquiry put the issue in front of you years ago, the three years may have started then.

The fifteen-year longstop

Section 14B bars any action for damages for negligence brought more than fifteen years after the negligent act or omission, even if you could not have known about the problem. For a conveyancer, the act or omission is the work done on the purchase, not the later sale. Like s.14A, the longstop applies to negligence claims; the contract claim will normally have expired long before.

Deliberate concealment

Section 32 postpones the start of the limitation period where a fact relevant to the claim has been deliberately concealed by the defendant, until you discovered it or could with reasonable diligence have done so. Deliberately committing a breach of duty in circumstances where it is unlikely to be discovered for some time also counts (s.32(2)). Where s.32(1)(b) applies, ss.14A and 14B do not; the six-year period under s.2 runs from discovery instead (s.32(5)).

The bar is high. In Cave v Robinson Jarvis & Rolf [2002] UKHL 18, the House of Lords held that a professional who makes a mistake without realising it has concealed nothing. A conveyancer who later realises the error and chooses to keep quiet is a different matter, but that has to be proved.

Why the protocol needs time

A conveyancing negligence claim follows the Professional Negligence Pre-Action Protocol: a letter of claim, an acknowledgment within 21 days, then three months for the conveyancer's insurer to investigate and respond, with reasonable extensions expected. Before any of that, a solicitor needs your file, which can take weeks (see getting your conveyancing file), and often an expert valuation.

The protocol itself says it "does not alter the statutory time limits for commencing court proceedings." Nor does a complaint to the firm or the Legal Ombudsman. Where a deadline is close, the protocol allows the parties to agree a standstill agreement, or a claim can be issued and stayed while the protocol runs. Both are solicitor's tools, explained in the general time limits guide.

What a solicitor will want from you

• The dates of exchange and completion, and the completion statement.
• The report on title and anything else the conveyancer sent you before completion.
• The date the problem first came up, and what raised it: a buyer's enquiry, a lender, a planning decision, a neighbour.
• Anything earlier that touched on the same issue, even if you did not act on it.
• Your correspondence with the conveyancer since, and any complaint.
• Whether a sale has fallen through or a price has been renegotiated because of the problem.

Run the free case check for an estimate of where your dates fall. The estimate is a guide only: the date of damage and the date of knowledge are both arguable, and a solicitor will test them against your documents.

This guide is general information about the law of England and Wales. It is not legal advice. Limitation is fact-specific, and only a solicitor reviewing your documents can confirm a deadline.