Relying on Solicitor’s Approval Clauses

13 April 2022

We often receive Agreements for the sale of a property which include a clause making the sale conditional on the purchaser’s or the seller’s solicitor’s approval of the Agreement. Clients often mistakenly believe that this condition allows them to withdraw from the purchase or sale if they have misunderstood the Agreement or something is wrong with the Agreement or, even if they change their minds, by instructing their solicitor to withhold approval.

The Courts have consistently decided that a solicitor can only withhold their approval in a narrow range of circumstances. Although the ability to withhold approval will depend on the exact wording of the clause and the circumstances of the agreement, solicitors can generally only withhold approval on the “conveyancing aspects” of the agreement, not the “commercial aspects”. That means a solicitor cannot withhold approval because the client may be able to obtain a better price or because the client has second thoughts. Nor can a solicitor withhold approval just because the client asks them to.

If you are looking to purchase a property and you’re unsure about what a clause in an agreement means, or unsure about signing the agreement, it is better to include a well drafted due diligence clause than a solicitor’s approval clause. The best course of all is to provide your solicitor with a copy of the draft agreement for approval before you sign it.

The NWM Property team can help and are available in our Hamilton office, as well as in Huntly on Mondays and Thursdays (and other days by request).

Carla Rule is part of our Private Client team at Norris Ward McKinnon.

Private Client Team