A Call to Standardise Conveyancing Contracts

 

Reading comments from many Conveyancing Solicitors on Law Society chief executive Desmond Hudson’s call for more progress towards electronic Conveyancing, I was struck by how many called for standardisation of the contract and pre-contract enquiries.

Even if the land registry brought in electronic property transfers, this would not help speed up the pre-contract stages of Conveyancing, when the draft contract is considered, pre-contract enquiries raised and local searches made.

Local searches have for many years been a major cause of delay at this stage, but it has to be said that many councils have now computerised their records and are able to turn around searches in a few days. There is still room for improvement by some councils, but the general trend to speed up search response times is welcome.

But delays are frequently caused by Conveyancing Solicitors wrangling over amendments to the contract and Standard Conditions of Sale.  

Raising numerous additional enquiries is also often a cause of delay. Some firms seem to take a delight in raising enquiries a few at a time over a period of weeks, necessitating sellers’ Conveyancing Solicitors in having to keep referring to their clients for yet more information.  

It is a sad fact that in the many years I have been involved with property Conveyancing, we seem to have moved further and further away from any general acceptance of the printed contract and enquiry forms. Instead Conveyancing Solicitors feel obligated to add pages of amendments to the Standard Sale Conditions, and to use their own lengthy enquiry forms.  

Even when sellers have completed the Law Society TA forms, many firms insist upon submitting their own forms, which often just duplicate the questions on the standard forms.

There is no doubt in my mind that one of the culprits in creating this additional paperwork is the computer itself – whereas in the past additional clauses had to be typed onto printed forms, which took time, nowadays every Conveyancing Solicitor can have his or her own preferred forms stored on their PC, and additional clauses or enquiries can easily be added.

Another reason for the growth in additional enquiries is the need to try and avoid professional negligence claims. Buyers generally could not care less about getting the information when they are in the process of buying. But once the purchase is completed and they have discovered all the problems which the seller was probably anxious to conceal, they will look around for someone to blame – and sue. Who better than the Conveyancing Solicitor with professional indemnity insurance – a much better bet than the seller?

Is there any solution to the problem of Conveyancing Enquiries?

While it would be nice to think that there should be standard conditions of sale which would cover every eventuality, that is unlikely. So it would be difficult to say that all contracts for the sale of residential homes should be in exactly the same form. The same applies to pre-contract enquiries, and Conveyancing Solicitors should be free to raise relevant enquiries which are not contained in one of the usual forms.

But it would help if there was some requirement to prevent indiscriminate amendments to the standard conditions of sale. These have been produced by the Law Society after widespread consultation and discussion, so they should not be altered unless essential for a particular property. But it has to be said that some of the amendments commonly found have themselves become ‘standard’ so perhaps the Law Society should be looking at altering the standard conditions accordingly.

Solicitors generally do not seem to be prepared to accept any form of standardisation unless it is made mandatory, or there are sanctions in place against the use of non-standard forms. That would probably require legislation, and it is very unlikely that the government would see fit to consider this unless there was a general call for action.

In the meantime, the Law Society should make the general use of its standard forms and conditions obligatory for firms which are registered under the Conveyancing Quality Scheme.

 


by admin
Monday 14th of September 2015 09:34:29 PM