Author: Elizabeth Heaney
Published: 9 August 2023
Pages: 31

Introduction

Under ss 21, 21A and 21B of the Property (Relationships) Act 1976 (PRA), parties are able to contract out of the provisions of the PRA. However, those contracting out agreements (under s 21) or settlement agreements (under ss 21A and 21B) are only binding on the parties if witnessed by a lawyer who certifies that they have given their client independent legal advice before signing the agreement. This opens up the potential for lawyers acting on such agreements to become liable if they do not provide adequate independent legal advice.

The first half of this paper gives an overview of the potential causes of actions lawyers may face if they fail to give adequate advice in respect of contracting out and settlement agreements. The second half of the paper explores the ways in which lawyers may breach their obligations and sets out some “dos” and “don’ts” to assist lawyers advising on these agreements.

Content outline

• What is a lawyer required to do in relation to agreements under the PRA?
• What causes of action could be brought against a lawyer?
• To whom does a lawyer owe a duty of care?
• Has the breached caused the loss?
• How will damages be measured?
• What is the statutory limitation to bring a claim?
• Dos and don’ts