Monday 12 May saw the publication of the Law Society’s climate change and property practice note which aims bring some clarity for property solicitors on what they should (and should not) do in terms of advising clients on potential future climate change issues relating to property transactions. 

Background 

The note builds on the Law Society’s climate change guidance from April 2023: The impact of climate change on solicitors. 

Property solicitors may recall that, following the publication of the April 2023 guidance, various search providers brought out products purporting to predict the effect of climate change on property, in some cases up to 50 years in the future. There were also other professional opinions being circulated amongst the profession relating to the potential duties of solicitors when advising on climate change. Needless to say, this led to some confusion amongst property solicitors as to what, exactly, they should be advising clients upon when it comes to climate change, with solicitors eagerly anticipating the “sector specific” guidance referred to in the April 2023 note. 

Two years down the line, we have the “Climate change and property” practice note which, as it says on the “tin” includes “practical guidance to help address common challenges identified by solicitors”. 

Overview 

The note is split into, essentially, four sections: 

1. Examples of climate risks in property transactions – this covers the physical, transition and legal or liability risks potentially encountered in respect of climate change. There is emphasis on the position that “solicitors are not qualified to advise on physical risks”, which will be a relief to the profession. Instead, it suggests that solicitors should advise clients to seek suitable specialist advice. Ultimately, solicitors should advise on the legal implications of potential liability or legal risks arising from physical or transition risks.
2. How to advise on climate risk – this is the most practical part of the note and includes a checklist of what solicitors should consider doing about climate risk in property transactions. It also includes sample wording which can be inserted into reports on title and even adapted for letters of engagement. There is also a section on climate risk searches, including information about how they work and their limitations. 
3. Acting for clients in different types of transactions – this section focuses on specific types of transactions, but also emphasises that advice given by solicitors very much depends on different clients’ intentions including experience and knowledge of climate change, appetite for risk, and access to expertise. 
4. Valuations and surveys – finally the note concentrates on valuations and surveys. It provides a list of organisations which may be able to recommend suitably qualified professionals to provide such specialist surveys and valuations in the context of climate risk that solicitors can point clients towards. 

Principal outcomes 

It is clear that, in preparing the note, the Law Society’s aim was not to impose additional duties upon solicitors, but instead to support them in discharging their duties when advising clients on the potential impacts of climate change. The note gives practical guidance as to how solicitors may choose to act, depending on a number of factors including the specific property and its intended use, the nature of the transaction, as well as the client’s knowledge, experience, access to specialist advice and attitude to risk. 

Solicitors should be relieved to note the repeated emphasis that they are not qualified to advise on the physical and technical impact of climate change, and as such they should not try to do so. Instead, clients should be seeking advice from qualified professionals, with the note including a list of organisations which can help with this.

But as always with matters connected with a legal transaction, solicitors should make sure all discussions and advice given should be recorded in writing throughout.