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Ask Buachaill Your Own Question
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10115
Experience:  Barrister 17 years experience
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My siblings and I were selling a jointly owned property. I

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My siblings and I were selling a jointly owned property. I was also the Estate Agent. A sale was agreed subject to planning permission. The planning permission was granted. By this time the market had changed and the buyers ( 2 - one of whom wanted to proceed) withdrew. It transpired that contracts had not been signed subject to planning.

1 I Was the solicitor neglectful in not having contracts signed prior to the application for planning?
2 If so would we have a case against him?
3 Could we claim the difference between the amount being paid and the time and the amount achievable now?
4 Assuming positive answers to 1,2 & 3, if all of the family could not agree in initiating proceedings could one or more than one take proceedings for their share(s)?
1. At the outset, I do not believe you have a successful case against the solicitor for negligence in not having contracts signed subject to planning. Essentially, the onus is on the client to insist that things be tied down. The solicitor is only the adviser, not the man of business who makes the business decisions. You should also realise that a similar onus could be placed on the estate agent - you - to tie things down for the client's satisfaction. Accordingly, if the case against the solicitor succeeded it would also succeed against you, as estate agent. This effectively would mean that the solicitor could recoup most if not all the damages awarded for negligence from you personally as estate agent under the Civil Liability Act, 1961. So, I think you should reconsider this course of action.
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Customer: replied 3 years ago.

Thank you for that.


When I as Estate Agent advised the solicitor, on behalf of the client(s) of the "sale agreed" and to prepare contracts, I advised him of the planning condition. I would have thought that the contract would have included such a clause and that the Purchaser and the Vendor would have been invited to sign the contract.


The whole object of this type of contract is to ensure that if the Purchaser gets planning permission, especially with a specific set of plans, that the Vendor could not renege on the agreement and keep or sell the property to A N Other. Likewise such a contract should protect the seller in that, since the property is off the market during the duration of the planning application that the vendor should not suffer by possibly missing out on other prospective purchasers.

2. Unless you can point to a specific request that contracts be signed, then your case is not a runner. Essentially both sides kept their options open here by not signing a contract. No court is going to allow you foist liability on a solicitor when s/he was not specifically requested to do something. That just does not happen. It is very easy to be wise in hindsight. However, the vendor kept its options open here by not signing the contract. Any man of business is taken to understand what he has done. A solicitor is not required to make a business decision whether options should be kept open or not. That is the role of the client and unless the client can show specific instructions, there is no general onus placed on a solicitor to be a busybody. Additionally, the estate agent who could have generated his fee here had a sale concluded also choose to keep the client's options open.
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