How many conveyancers does it take to screw in a lightbulb?

16 Jun 2014

OK, so we now have your attention.

The answer? Well I would hope one, two at the most.  Conveyancers are highly competent but they do far more than just handy work around the home such as replacing lightbulbs.

A conveyancer’s typical day is fraught with incredible risk from law suits from a multitude of places:

  1. You, as the client
  2. Your mortgage company, if you are purchasing with a mortgage
  3. The opposing solicitor/party, if we undertake to do something and we fail to do it
  4. The authorities who regulate money laundering/mortgage fraud

The moment a conveyancer answers your telephone call, they start to assume risk for any errors.  If you consider their fee to be the lowest in the moving home process (compared to surveyors, mortgage advisers, removal companies, estate agents) and yet the sheer weeks of work they involve themselves in, and without any disclaimer clauses for errors, conveyancers might be excused for wanting to always put things in writing to avoid the “he said-she said” situation with the inability to demonstrate who said what in any given verbal communication.

Let's therefore consider the risks they face in a typical sale and a typical purchase:

Sale

  1. Your conveyancer is selling your house, but if they do not actually send you a plan and volunteer up to the Buyer what they think are your title deeds – having secured them from the Land Registry and you never see a plan from them – you yourself have no way of knowing if they have got it right, yet your conveyancer is exposing you and them to having to add extra property deeds after the exchange if not all the land was transferred. Costly.
  2. Your conveyancer may give a professional undertaking to repay your mortgage from the net proceeds but forget to get a repayment statement to check you are not in negative equity, or they forget to pay it off and in fact release all the proceeds to you. You then become untraceable/unable to pay it back through no fault of yours. They have a costly mistake on their hands.
  3. Your conveyancer does not correctly identify you (through identification documents) and they expose themselves to claims by the authorities for money laundering – whether or not money laundering is actually taking place.
  4. You fill in certain questionnaires as part of the sale documentation which are then given to the buyer.  If your conveyancer does not check your answers, you may inadvertently have given too much information or not enough information.  In the former case, your transaction might abort because of the lawyers fault and you have suffered loss.  In the case of the latter, you might be sued long afterwards for wrong answers when the lawyer should have guided you under the Law Society Protocol/Solicitors Code of Conduct rules which imposes on conveyancers the obligation to check through answers.

Purchase

A conveyancer's risk here is far greater, in that a purchasing conveyancer does far more work than the selling conveyancer.  The purchase conveyancer has to review all the sellers’ legal paperwork to make sure that it is legally sound, to carry out all the usual conveyancing searches and advise you on the content, and overall present you with a legal picture of what you are buying into and taking on as a home owner, and free of claim from third parties, and hopefully defect free from when you come to re-sell.

But – and this is so often not appreciated by clients – if you are buying with a mortgage, your Lender will not be willing to take a view on any legal issue that may arise, in a situation where you might. This ties the hands of your conveyancer to get to the bottom of any particular issue. So make sure you have an expert solicitor to start with.

Choosing the very best conveyancer is crucial.  The following can be risks your conveyancer face when buying a property:

  1. They do not seek copies of 'conditional' planning consents, however old they are, as there might be conditions restricting your use of the property, or an extension for instance. Conditions are binding on you unless generally breached for more than 10 years. But one need to know the conditions in the first place.
  2. They do not spot that the main road abutting your property boundary does not quite reach, and there is land owned by a third party over which your deeds give you no rights of way. You could be denied access to your home on moving in!
  3. You buy a new build property, but the conveyancer fails to secure sign off from the Council's building control, or properly secure a new home build warranty for 10 years.
  4. The conveyancer overlooks to tell you that the deeds contain various restrictions on what you can and cannot do – e.g. park commercial or caravans at the property, to building externally (e.g. extensions) without third party consent which might not be given.

A conveyancers life is a tough one, as they have to be constantly aware of a hundred or more potential traps for making a mistake on your sale or purchase, as in the first instance you will suffer as the home owner, and then they might through being sued.

Take steps to secure the very best conveyancer you can, but also know that when they are trying to get things right, they are doing it for legal reasons, not to be difficult or slow for the sake of it. Your Lender may also be tying their hands.