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Fridays response to the Law Society’s ‘Improving Conveyancing’ Consultation

Four or five months ago the Law Society embarked on a consultation process looking  at ways in which the conveyancing process could be improved and sought feedback from its members (property solicitors) specialising in conveyancing.   The Law Society also sought opinions on the current conveyancing process and thoughts on their skeleton proposals for improving conveyancing from party bodies that had a vested interest in the conveyancing process such as the Council of Mortgage Lenders (CML).   I have already posted a blog on the CML’s response to the ‘How to Improve Conveyancing’ consultation.

Even though the Legal Services Board have recently canvassed licensed conveyancers’ opinion on the future of conveyancing, I am not aware of the Law Society actively seeking the opinion of any licensed conveyancers on this particular conveyancing consultation. This is a shame as property solicitors deal with licensed conveyancers on the other side of conveyancing transactions and vice versa.   Therefore, licensed conveyancers, who specialise in nothing but conveyancing, I am sure would have plenty to say on the consultation.

I am setting out in this blog one or two of the questions relating to the conveyancing process that the Law Society have raised together with my response.

Do you agree with the view that the existing conveyancing process represents an effective balance between competing interests between buyers and sellers?  Are there any aspects of the existing conveyancing process that you would seek to reform?

I think that one of  the most important changes that should be made to the conveyancing process is the a conveyancing protocol (standard documentation and agreed processes) that all conveyancing lawyers should comply with.   This should be done together with the Council of Licensed Conveyancers and other bodies that may in the future regulate conveyancing in the UK.   The Law Society in the past have tried to introduce a protocol but unfortunately it was a voluntary conveyancing protocol and was not enforced by the Law Society.   This led, in many conveyancing cases, to some property solicitors simply ignoring the protocol and often being as blunt as saying that they did not agree with the protocol.   By having one standard protocol and agreed process, an conveyancing transaction would proceed a lot more smoothly . Ultimately. this would speed up the conveyancing process and provide the public with greater clarity.   The cynic in me thinks that in many ways the Law Society and more ‘Jurassic’ property solicitors actually like complicating the conveyancing process because it somehow just keeps the whole conveyancing process shrouded in a mystery and complexity, therefore justifying high conveyancing fees.   This approach has very much backfired.   The public demanded cheaper conveyancing and as such those property solicitors that have created a culture of complicated conveyancing in refusing to (or rather burying their head in the sand) adopt technology or improved processes have actually made a rod for their own back. A recent survey by the Law Society has revealed that 18% of the property solicitors surveyed believe that “ technology has peaked “ . That is right, you have not misread. 18% believe that technology  has peaked.
I would go so far as to say that a protocol with a ‘bite’ would have had a similar impact to speeding up the conveyancing process as Home Information Packs

Do you agree that the Law Society should investigate a move towards a ‘seller disclosure’ in conveyancing?

Absolutely.   The conveyancing process at the moment relies heavily on the adoption of a caveat emptor which dates back centuries.   This is part of the reason why the conveyancing process is so long.   Ultimately, under the current system, the buyer and their property solicitor is expected to unearth problems of defects.   Not only does this create an atmosphere of distrust between sellers and buyers ( as well as adversarial  relationship between property solicitors) but also slows up the conveyancing process.  

If ultimately a conveyancing protocol existed whereby the onus of disclosure was placed on the seller, we may find that the sellers and their property solicitors work together as the property is put on the market and start reviewing the conveyancing paperwork and preparing the legal documentation for sale in advance.   Financially, this would obviously put an onus on the seller.   I doubt property solicitors are going to do this work for free, but if this coincided with the abolition of Home Information Packs, I would expect most property solicitors could do a full review of paperwork for something in the region of £300.   Those in the HIP industry may well respond to my comments by saying that they are actively trying to promote an ‘exchange ready HIP’.   I have already made my feelings known on that particular myth.   ‘Exchange ready HIPs’ are as rare as hen’s teeth.   It is worth noting that ‘exchange ready HIPs’ do not put the onus on sellers to disclose information and they may need to produce some additional legal documentation.

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