Real Estate Law Title

This article exposes ten ways in which the conveyancing lawyer, acting on behalf of the seller typically slows the selling process down:

When selling, many conveyancing solicitors have the misguided belief that all they do is throw out the papers to the buyer’s conveyancer.

This mistaken belief was spread by the axiom of Caveat Emptor, which obliges the property investor rather than the seller to uncover defects or legal problems with a property.

As if the Caveat Emptor was not enough the courts, through cases such as William Sindall Plc -v- Cambridgeshire County Council 1993 have encouraged convayancing lawyers not to look at the paperwork for fear of being legally exposed to an argument that in reviewing or commenting on the papers that may have some degree of responsibility to the buyer.

We would also argue the commoditisation of conveyancing and the driving down of conveyancing fees means that mostconveyancing firms do not give themselves the luxury of being proactive and reducing the risk of the buyer’s conveyancers raising enquiries.

The end result is that the majority of conveyancers do not read through them first with the following results:

1. They fail to ensure the Buyer’s conveyancing lawyers receive the HIP. Lamentably only a few conveyancing lawyers provide HIPs and therefore rely on the agent to provide the HIP to the buyer’s conveyancing lawyers.

2. The Home Information Pack, not being produced by those with expansive knowledge of the conveyancing process, has unspotted errors in because the Seller did not have it prepared by a conveyancing solicitor.

3. Many sellers rely on the registered title in the Home Information Pack which may be months old, this is not acceptable to the Buyer’s conveyancing lawyers (because it is not up to date) and so days are lost in getting fresh requests.

4. Even if an up to date title is produced, many conveyancers forget to apply for and send the independent
documents referred to in the title. Perhaps as many as one third of titles refer to additional documents which the Buyer’s solicitors always ask to see. The Land Registry can take up to 7 working days to send these documents. They are not a required part of a HIP.

5. Planning permissions for home improvements certainly in the last 4 years, and ideally in the last 20, if not a complete set, are not produced, so the Buyer’s solicitor has to chase. According to Fridays Property Lawyers data, there is an average of 1.5 planning documents applicable for every property.

6. New Home Warranty papers fail to be sent. They are not required as part of the HIP and are often in the possesion of the Seller. Too often these documents are mislaid and precious time is wasted getting duplicates. No mortgage broker in the United Kingdom will approve a mortgage on a newly built house without such warranties being to hand.

7. All English lenders require conveyancing solicitors to be satisfied with management information for a leasehold property. All too often the seller’s property solicitor will not send this information out on a leasehold sale, until requested, losing weeks potentially

8. Out of date Protocol Forms are too often sent by the sellers conveyancer, meaning even more questions must be asked to get them as up to date as the latest copy.

9. Failure to read the Sellers Property Information Form or Property Information Questionnaire which refers to guarantees, or construction worksor UPVC or electrical works - so the conveyancing solicitor for the Buyer has to then chase for this extra information.

10. Having too many contractual ’special conditions’ some of which can be unusual, like seeking a refund of searches, or not warranting the accuracy of plans or having clause after clause of what penalties the Buyer would be liable to pay if they fail to complete.

If a seller’s conveyancing solicitor dealt with all the afore mentioned points it would assuredly speed up transactions but it would not make the documents “exchange ready “. So, are exchange-ready - Home Information Packs the answer? Regretably we are yet to see such a document. Our fear is that they are as uncommon as pigs wool. One particular company indicates that their Home Information Pack will include a certificate saying that the Home Information Pack is “Exchange Ready”. Given that the ERH does not deal with all of the above points at best it is an insult to the publics intelligence but at worst it may merit serious investigation by Trading Standards for being erroneous.