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Judge raises concerns over attorney conflict in land sales

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Judge raises concerns over attorney conflict in land sales

A HIGH COURT judge has ordered a Port of Spain law firm and one of its attorneys to bear all the costs associated with getting a valuation done on a piece of land in central Trinidad.

When the valuation is completed, the firm and the attorney will also have to pay any difference between what policewoman paid for the land and its value in its current state.

Justice Frank Seepersad made the order on Monday, in a claim by Nerisa Garrette against Scotiabank, attorney Tiffany Oliver, the firm Fitzwilliam Stone Furness-Smith and Morgan, and Dickey Seepersad, the vendor for the land in Longdenville.

Seepersad dismissed the claim against the bank and Seepersad, but held the lawyer and the law firm owed a duty of care to Garrette and the bank in the land-sale transaction.

In 2015, Garette saw an advertisement for the sale of land on the bank’s noticeboard. She made inquiries and was directed to Seepersad, the vendor of the land.

A site visit was done and she arranged with the bank to buy the land and was sent to the law firm, which was on the bank’s panel of attorneys.

Garette subsequently paid fees, signed instructions, and by September that year, a deed of conveyance and a deed of mortgage were executed, prepared by Oliver.

By March the next year, after she spent money on a building plan for her home, Garrette was told the land had no approval, as the parcel she wanted to buy was part of a larger parcel that did not have the requisite approval for sub-division.

Garrette no longer wants the land, but sought to recover the money she has already spent.

In his ruling, Seepersad said the attorney and the firm had to confirm the title of the property and ensure all the necessary statutory approvals were in place to facilitate the construction of a house and to ensure the marketability of the land was not adversely affected by the absence of statutory approvals.

He found, based on the evidence, that Oliver and the law firm acted on behalf of both Garrette and the bank, rejecting the firm’s claims that the buyer was not its client or Oliver’s.

He said that position was “disappointing,” as attorneys who are on the panel of financial institutions enjoyed “lucrative positions of privilege.”

“They often get significant work to prepare both the conveyance and the mortgage when customers elect to buy property.”

He said the option of a potential purchaser to use the bank’s attorneys was often more convenient and attracted discounts on mortgage fees when one attorney did both the conveyancing and the mortgage.

But he said the law firm’s position “should cause alarm bells to ring in the minds of those bank customers who elect to use their services to prepare their conveyances when their acquisition is to be secured by way of a mortgage.”

He said given that the firm held the view it acted primarily on behalf of the bank and not Garrette, the warning of “buyer beware” “should resonate in the minds of those who are similarly circumstanced to the claimant” and choose to use a financial institution’s attorneys.

“The position adopted by the third defendant poignantly highlights the conflict of interest which frequently arises when the attorneys on the banks’ panels deal with both the conveyance and the mortgage as it appears that with complete disregard for the provisions of the Legal Profession Act Chap 90:03, it is more convenient to sacrifice the individual purchaser so as to preserve the lucrative relations with the financial institutions.”

Garrette was represented by attorneys Cedric and Auldric Neptune. The bank was represented by Farees Hosein and Tanya Rowley.

Oliver was unrepresented and the law firm was represented by attorney Christopher Sieuchand.


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