Climate change and property practice note: “this note is here to support solicitors, not to add extra burdens”

The effects of flash flooding, extreme weather, wildfires and coastal erosion have all made recent headlines – and these risks are likely to be increasingly on the minds of property buyers.

There is now “unequivocal evidence that climate change is making extreme weather in the UK more likely and more extreme”, according to the Climate Change Committee’s progress in adapting to climate change: 2025 report to Parliament.

In fact, the Environment Agency’s national assessment of flood and coastal erosion risk in England 2024 finds 6.3 million homes and businesses are in areas at risk of flooding from rivers, the sea and surface water, predicted to rise to 8 million by 2050.

A Natural Resources Wales report estimates around 270,000 properties are at risk of flooding in Wales, with projected increases across flood categories by 2120.

There’s growing concern amongst the property industry.

Aviva research (2024) found that one in 13 new homes built in the previous 10 years were built in a flood zone – estimated at almost 110,000.

The insurer used its research to call for collective action to change “where and how we build”.

Giving clarity to members in uncertain times

Until now, there has been a lack of clarity on how these factors affect how solicitors advise on climate risk in property transactions.

Additionally, members of our property community felt that following the publication of the Law Society’s general climate change guidance in 2023, a supplementary note for property lawyers specifically was necessary to give practical, actionable advice.

Our consultation on the note revealed members would appreciate some guidance on speaking with clients about climate risk.

“I wanted it to be absolutely clear that this note is here to support solicitors, not to add extra burdens,” says Warren Gordon, a key contributor, senior knowledge counsel at CMS and former chair of the Law Society’s Conveyancing and Land Law Committee.

“The fundamental point that comes through from the note is, there are no duties on solicitors in relation to climate change.

“All we're saying is as a matter of good practice, you should be clear with your clients as to what you are and are not doing in relation to climate change.”

The note undoubtedly comes at a time when property lawyers are already facing huge challenges to their practices, says Clare Harman Clark, senior counsel at Taylor Wessing and Law Society Property Section chair.

They've had to get to grips with the Building Safety Act for example, as well as changes to TA6, the promise of planning and residential leasehold upheavals, not to mention understanding and implementing the new wave of technology creeping through the back door.

“It’s been a tough time to be a property lawyer. I think it's entirely understandable if some glance at the headline and think, ‘yet again, something else is going to change’.

“But this absolutely isn't a practice note telling you that you must now become an expert in climate change science or even that you always have to pay for a new transaction search.

“The fact is that while our clients are spotting the potential of physical climate risks (floods or subsidence), we are already advising on the legal risks of climate change, picking up on MEES (Minimum Energy Efficiency Standards) for example”, adds Clare.

“The purpose of the note is to pull it all together and prompt members to ask, “Are we thinking logically through the legal liability that comes up as a result of changing physical risks or transition risks? Are we clear as to what the client can expect from us in this new world, as well as what they can’t?”

“Every client will be different” adds Warren.

“You'll have some very sophisticated clients who are doing their own investigations, with their own separate advisers. Others may have a building surveyor, they may not, but they perhaps need to have a conversation to understand what the issue is about.

“It’s not our job to advise on climate change. But it’s an issue and it’s out there.”

Happily ever after

Still, those looking for their ‘forever homes’ by the sea could likely be most in need of a climate conversation, adds Clare, which is why it’s important that solicitors have the note’s guidance to hand.

It also includes some standard template wording to use as you see fit.

“When you're thinking about a resi purchase for a couple who are looking for their forever home that they're going to retire in, the note can help you to use the right words to speak to them about climate change risks and what to do about it, which could involve speaking to other specialists.”

“Of course, we're doing that anyway”, adds Clare.

“There isn't a lawyer in the country who gets a client through the door and doesn't ask, ‘What's your intention with the building?’

“We need to work to ensure good and marketable title, so we're already thinking, ‘Will the property maintain its value? Will it be saleable? Will it flood and can you insure it?’

“All those practical things, we're doing them anyway. The practice note isn't overturning our way of doing business.”

Representing member views in the note

The note, which went out for consultation at the 2024 property conference, was developed through consultation and close collaboration with Law Society committees, property-focused lawyer groups, local law societies, United Kingdom Environmental Law Association (UKELA) and some surveying bodies.

“We had loads of comments back and we really sought to take those comments on board,” Warren explains.

“We were very conscious in the way that we handled the preparation of this note, the rollout of the note and the concentration on the note, to learn lessons from the TA6 experience.”

Reviewing advice over time

Property and climate change risk is not a static issue, adds Warren.

“The topic will change over time, so too will the attitudes towards it, and climate risk itself will change.”

As such, it is expected the note will be revisited to reflect any changes in future.

“All in all, it's a sensible position, that is the result of a desire to support and reassure members. We’re all on a journey together responding to the climate crisis. This is a good, solid, foundational step,” Clare concludes.