You can’t ‘take a view’ when buying with a mortgage

05 Jun 2013

When buying property with a mortgage, your lender will usually require your conveyancer to be its conveyancer too. Your conveyancer then has two clients – you and the lender.

Unfortunately as a result, your conveyancer must tread a delicate balance between acting in the best interests of both you, and your mortgage company. If your conveyancer cannot, then they may well have to refuse to continue to act for your lender (albeit without disclosing why which will invariably mean your lender will refuse to continue lending) and quite possibly you too.

However, unlike the fact that you will consult with your conveyancer throughout the transaction in considerable detail, the lender is a company and of course will not. You might think that that means you can influence your conveyancer and take the lead on decisions affecting your property purchase. Unfortunately not.

Conveyancing solicitors must follow the Council of Mortgage Lenders (CML) Handbook, which is designed to provide conveyancing solicitors with comprehensive instructions setting out what lenders expect conveyancers to do when acting for them. These standardised instructions set out such things as what searches and enquiries must be carried out, the need for good and marketable title, the need for Council consents for building works, and breaches of restrictions in deeds and absence of legal rights.

As a result, where you might be prepared to take a view on the absence of a required document, a right, or a consent, if the CML Handbook requires it, then your conveyancer has no choice and they must secure it. Otherwise, they must report the fact to the lender for how they wish to proceed – if at all. One consolation here is that your conveyancer must also provide a recommendation on how the lender should protect their interest. Depending on the quality of conveyancing solicitor you instruct, you should hopefully find that they are able to properly advise the lender (and you) as to a solution to resolve any issues.

Your conveyancer is not making life hard for you, they are simply duty bound to comply with the CML Handbook, failing which the lender can take legal action against your conveyancer, and ultimately, they could refuse to appoint the conveyancer's law firm in future. This would mean that on future work, you could still use the conveyancer but your lender would choose a separate one, and they would charge you their fee for doing so. Not very attractive to you, and so tempting for you to use a conveyancer who could act for you and the lender jointly. Conveyancing solicitors could therefore start losing lots of clients if they ignored the CML Handbook.