Real estate: 5 key causes of claims

 

Commercial and residential deals often move at a furious pace. In this heated, frequently complex environment, real estate lawyers find themselves exposed to a higher risk than other practitioners of making two types of mistakes. The first is a legal issue failure — giving the wrong advice because you do not know the common law or a specific statute well enough to properly advise a client. This is the underlying cause of the numerous reports of GST and PTT errors that we receive from real estate practitioners. The second is a type of oversight — missing some step that needs to be taken but that would have been caught through a careful review of relevant file material.

This area of law consists of both residential and commercial real estate practices. You can find out more about each cause, including examples and video stories from actual claim files, as well as how the five causes break down between residential and commercial practices, below.

Pie chart: 5 key causes of claims for real estate

Date Range: 2003 - 2017

Find out more about each cause, including stories and videos of examples from our claim files, below.

These failures have nothing to do with your competence as a lawyer, but everything to do with how you manage the process of providing legal services. They break down as follows:

Not managing client expectations (45%)
You fail to appreciate the risk inherent in a client or their expectations of the legal process (33%), who is doing what (63%) or how much it’s going to cost (4%).

Claim file example
Lawyer acted for the vendor in a real estate transaction. The lawyer understood that the vendor was obtaining separate tax advice with respect to GST. The vendor signed a GST exempt certificate for the sale when, in fact, GST was applicable. When the vendor is later pursued for the tax, he suggests that the lawyer should have advised him of the GST implications of the transaction.

Not managing third party expectations (24%)
You don’t appreciate that someone for whom you are clearly not acting thinks that you are somehow protecting their interests.

Claim file example
Lawyer acted for a vendor of property. The lawyer was not put on an undertaking concerning the real estate commission, and the client said that he would pay it. The client did not, and the realtor now threatens to sue the lawyer for allegedly failing to protect the realtor’s commission.

Not managing the retainer (setting up or concluding) or emerging conflict effectively (31%)
At the start of the retainer, you don't adequately think through how you are going to deliver the legal services or if you are able to represent all parties (51%) or, once the legal work is done, you 'move on' without ensuring that the final wrap details are properly attended to (18%), or you fail to manage a conflict that emerges during the retainer (31%).

Claim file example
Lawyer acted for an unmarried couple purchasing a piece of property, and prepared an agreement setting out their respective interests. The couple separates, and the man now alleges that the lawyer acted in a conflict.

These reports involve failing to sort out the legal issues or strategies required to achieve a client’s goal.  They break down into two categories: 

Ignorance of the law (47%)
You don’t appreciate that you don’t know an area of law as well as you need to in order to provide proper advice.

Claim file example 
Lawyer prepared a disclosure statement for a developer. The lawyer was unaware of the requirement for municipal approval of the development, and it was never sought. That failure has now come to light, and FICOM has put a stop marketing order on the development.

For a video claim file story, watch: Dabbling: A risky business

Not thinking it through (53%)
You know the law, but don’t fully think through all of the legal issues, or what strategies to implement or steps to take to achieve your client’s goal.

Claim file example 
Lawyer retained to effect a transfer of a property subject to a trust. The lawyer fails to consider the need to investigate the history of the title to ensure that all of the requirements to claim a property transfer tax exemption are met. The exemption is later disallowed.

These failures in listening, asking and explaining often involve lawyers making assumptions that later prove wrong.  They break down into two categories:

Communication issues with clients (80%)
You don’t devote enough time or attention to ensure that a client understands you or provides you with the information that you need, or you fail to ask for instructions or consent.

Claim file example
Lawyer acted for a long standing institutional lender client in relation to a second mortgage. She assumed that the standard mortgage instructions were identical to those used previously when, in fact, they now required the lawyer to check and advise the client how much was outstanding on the first mortgage. Unfortunately, after the first mortgage was paid out, there was little equity left in the property as security for the client’s second mortgage.

Communication issues with non-clients (20%)
You fail to communicate effectively with either other counsel on a matter or the other people on whom you rely to help you get the job done.

Claim file example
Lawyer acting for a purchaser understood that the vendor’s counsel had agreed to an extension of time for completion of the contract of purchase and sale. The vendor’s counsel now takes the position that there was no such agreement, and that the purchaser is in breach of the contract of purchase and sale.

Simple, inadvertent, oversights break down into 3 categories:

Flawed systems (3%)
These mistakes would have been avoided through an effective, firm wide system such as a mail or file maintenance and storage system. 

Claim file example
Lawyer acts for a purchaser in a real estate transaction. The bank draft the client provided to complete the purchase has now gone missing.

Sloppy practices or oops's (94%)
These include the unintentional clerical errors that we make when drafting documents (19%), the mistakes that would have been avoided with a careful review of relevant file material (32%) and the mistakes that occur because we just ‘drop the ball’ and forget or overlook some step that needs to be taken (49%). 

Claim file example
Lawyer acted for a husband and wife on a property purchase. The clients wanted to be registered as joint tenants. The lawyer failed to review the conveyance documents or double check the title registration, and the clients were registered as tenants in common.

For a video claim file story, watch: Right instructions, wrong result

Delegation without supervision (3%)
You delegate a task to an assistant or a student who makes a mistake, but only because you failed to provide proper supervision.

Claim file example
Lawyer acts for a husband and wife purchasing a family home, and asks an assistant to inquire about the vendor’s residency status. The assistant wrongly assumes that the vendor is a resident, as he has local contact information. Unintended tax consequences to the purchasers result, as the vendor was a non-resident. 

This relatively small risk has nothing to do with the quality of legal services you provide. These reports would have been avoided entirely if you simply had the necessary evidence to confirm advice that you gave (39%), instructions that you received (53%), or your dealings with other counsel and parties (8%).

Claim file example
Lawyer acts for clients on a property purchase, but fails to confirm in writing an agreed extension of the closing date with the vendor’s counsel. The vendor now has seller’s remorse, and purports to terminate the transaction. Litigation ensues.

For a video claim file story, watch: He said / She said

Find out even more.  Learn how the 5 key causes break down for residential and commercial.

  Cause of loss

Subcategories of practice
for real estate

Engagement management failures

Legal issues
failures

Communication
failures

Oversights

No trail

Residential

15%

16%

22%

43%

4%

Commercial

14%

37%

15%

31%

3%

Date range: January 1, 2003 to December 31, 2017

       

Next Steps?

For the articles and publications that will help you avoid claims in your own practice, review:

Real estate – risks and tips to read everything from developments in the law to the common causes of claims
Limitations and deadlines
Practice management - risks and tips
Areas of law - risks and tips

And remember, effective risk management also requires you to understand what’s covered under the compulsory Policy – and what’s not.  See Cover Pages and My Insurance Policy: Questions and Answers for more information.

 

Last updated: June 2018