A few cases recently have given rise to this problem. Lawyer acts for a buyer, and searches title including abutting land. Client advises how title is to be taken. Lawyer does not realize or notice that the client owns abutting land in the same name. The deal closes, the titles merge and then, later, the client wants to sell either the new parcel or the old one separately. Had the lawyer advised the client of the merger, each property would have remained separately transferable or mortgaged. As merged, neither can be without the other and a consent to sever obtained. There are no cases on a lawyer's liability on the duty to advise to prevent merger but my suspicion is that a court would find that a lawyer doing a search of abutting lands and knowing who owns the abutting parcels and being told of the manner in which title on the purchase is to be taken would be held to have a duty to advise the client that taking title as instructed would result in a merger of title with the obvious consequences. Be mindful of the possible issue when doing your searches and taking client instructions.
Originally published November 2014
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