Always call your conveyancing client the day of exchange

05 Aug 2013

Conveyancing solicitors act for 'clients'. But are these clients really the people they claim to be?

As a result, conveyancing solicitors carry out overt and covert identity checks. Covert in the sense that they must report suspicions of money laundering to SOCA – Serious Organised Crime Agency – without letting on (tipping off) their clients. Overt in the sense of checking original identification documents such as a passport/driving licence and utility bills.

After all, conveyancing solicitors are warranting to the counterpart solicitor that the person they act for is indeed the seller, or the buyer, as applicable.

When it comes to selling and buying property, the owner sells, and the purchaser buys. A legal contract is entered into by the two parties. However, that person must not be a minor, lack mental capacity or be deceased. The latter may speak for itself.

However, it is not unheard of for a conveyancing solicitor to unwittingly 'exchange contracts' on behalf of their deceased client. Clearly a contract open to challenge, and a disaster if that contract started a chain of exchanges all unwittingly snowballing from the 'deceased exchange'.

The scenario is frightening easy to fall into. The conveyancing solicitor speaks to their client on the telephone and asks for final permission to exchange contracts. Consent is given, the phone hung up and then that conveyancing solicitor telephones their counterpart to attempt an exchange. But what about the intervening gap. The longer it is the higher the risk that the client no longer consents or is unable to give valid consent.

The classic case is where consent is given, the evening arrives, and an attempt at exchange is made the next day instead. Should the conveyancer renew their authority?

Yes. Of course. Unfortunately the thought process of the risk takers might be to ask that question, but to then dismiss it with a 'ah, it'll be fine'.

Sadly death on the very day of an exchange can occur. Conveyancing solicitors should make no apologies to anyone chasing them to exchange for replying "I must contact my client to make sure for one reason, they are still alive".