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Clutton Cox Solicitors response to Improving Residential Conveyancing

View profile for Paul Hajek
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The consultation period to respond to the Law Society’s report Improving Residential Conveyancing closes on tomorrow 18th September.

We have listed the Questions posed by the Consultation Paper on Conveyancing together with our response.

If you have any strong views on the Conveyancing Process and how it can be improved please let your Solicitor know so your opinion can be heard, as this is the last opportunity to do so.

Summary of the consultation questions

Q1. Do you agree with the view that existing conveyancing processes represent an effective balance between competing interests between buyers and sellers? Are there any aspects of the existing processes that you would seek to reform?

Q2. In your view what further changes, if any, need to be made to the standard TransAction forms that exist as part of the National Conveyancing Protocol (5th Edition)?

Q3. Do you have suggestions for any amendments or additions to the National Conveyancing Protocol (5th Edition) itself which would encourage use of the Protocol?

Q4. (a) Do you agree that a range of Protocols would be of assistance to solicitors and their clients?

Q4. (b) Do you have a view on whether all or any specific types of conveyancing transactions should be covered by such Protocols?

Q5. (a) Do you believe the principle of caveat emptor in residential conveyancing transactions should be modified by the principle of ‘seller disclosure’, and if so, on what basis?

Q5. (b) Do you agree that the Law Society should investigate a move towards ‘seller disclosure’?

Q6. (a) What is your view regarding the formation of solicitor estate agencies?

Q6. (b) Would you welcome guidance from the Law Society on setting up solicitor estate agencies?

Q6. (c) In your view, what are the changes that would have to be made to the Solicitors’ practice rules to enable solicitors to compete effectively in this market?

Q7. Should the Law Society develop ways for solicitors to take on a role in relation to conveyancing transactions analogous to that of a notary in France?

Q8. Do you agree with our proposals for membership? Are there other criteria that should be applied to membership?

Q9. Are these the right commitments for solicitors to make in a membership scheme to improve the conveyancing process?

Q10. (a) What are your views on the concept of a ‘completion-ready pack’ and what documentation should be contained within the pack? Do you think it would appeal to sellers? What about buyers?

Q10. (b) Please specify any type of residential conveyancing transactions you would view as benefiting from a ‘completion-ready pack’?

Q10. (c) Do you think the Law Society should explore this concept in further detail?

Q11. Is a Residential Conveyancing Client Charter a good idea and do you have any comments on the content?

Q12. What are your views on how membership of any scheme should be policed? What sanctions should be applied and who should apply them?

Q13. (a) In principle, do you think it would be in the interests of conveyancing solicitors and their clients for the Law Society to develop a membership scheme that involved the use of revised conveyancing forms and protocol and was supported by an electronic infrastructure that supported the forms and protocol?

Q13. (b) Should the scheme be called ‘TransAction Plus’ and would you be interested in joining?

Q13. (c) What elements of TransAction Plus would you see as a pre-requisite for you to take up the scheme?

Q13. (d) What aspects (if any) of TransAction Plus would deter you from joining such a scheme?

Q14. (a) Should accreditation form part of the TransAction Plus scheme? If not, would you be interested in accreditation as a separate scheme?

Q14. (b) Do you believe that the Law Society should explore opportunities to promote the unique role of a solicitor to clients? Should this form part of the TransAction Plus scheme?

Q15. (a) What are your views on how a membership scheme should be funded?

Q15. (b) In the light of your own firm's strategic plans, for how long do you anticipate that a membership scheme would be viable?

Q15. (c) What fee would you be prepared to pay to join the membership scheme?

Q15. (d) Would you prefer to pay a fee per conveyancing transaction or a fixed fee per annum or a combined cost?

Q16. (a) Do you agree with our assessment of the advantages and disadvantages of the conveyancing portal?

Q16. (b) On balance, would you be in favour of the Law Society developing a portal to support TransAction Plus?

Clutton Cox‘s Response to Improving Residential Conveyancing

Q1. An updated Transaction Protocol would be helpful. It annoys me that most solicitors state in their initial correspondence that they adhere to the Protocol, but then send a non standard contract with their pet additional clauses. The new Protocol must insist on a standard contract with additional clauses only allowed on merit where specific circumstances of the transaction dictate.

The anomaly of Licensed Conveyancers being able to act for both parties, with no requirement to reveal referral fees must be addressed. The public needs full disclosure.

Q2. A standard contract must be agreed, with limited scope to add additional clauses.

Q3. I agree with all your proposed amendments to the Protocol as detailed in Clause 21

Q4. (a) No I disagree. This would be ammunition to say is your Solicitor using the normal (viz. Fast Track) or slower version (viz. non fast track).

The new Protocol must be simply in the eyes of the consumer, and the main benefit must be its universality

4(b) There would be no need in New Builds as in general all the paperwork is provided en bloc.

Q5. (a)The only modification could involve a Seller’s Survey as part of the HIP. The Surveyor would owe a duty of care to the Buyer and any Mortgagee relying on the Survey.

The concept of Seller disclosure could open up more litigation and provide less certainty and more confusion for a Buyer.

5(b) No, it is not a priority

6. (a) I had run an Estate Agency for 5 years within Clutton Cox Solicitors. The mix was difficult to achieve as integration was not ideal. The rational was to ensure we kept our Conveyancing clients. The costs were not insubstantial. The public were happy with using us to both sell and convey. After a little while we were just another agent. As no other solicitors had taken the plunge we were bereft of joint marketing activities and the opportunity to build the Solicitor Estate Agent brand. In the end I got bored of it and closed it down.

6(b) It is not difficult to set up an Estate Agent. It needs proper planning over a minimum of 3 months but ideally 6 months.

6 (c) The one we had most difficulty in explaining was why we couldn’t act for both sides. As long as Estate Agents are unregulated they will get away with abuses that for solicitors would mean reprimand or being struck off. Estate Agents actually mirror the public not the other way round. I would see no meaningful need to amend the rules there will never be a level playing field.

7. Definitely not. We are 30 years ahead of the French in the opening of our markets. Competition rules would not allow it.

8.Yes I would urge membership as a strong selling and marketing point, and a fermenting of the solicitor brand.

9. Yes

10.(a) A completion or even an exchange ready pack is the next developmental stage of HIPs. It would appeal to both, and is in effect already in existence in London I believe.

10(b) A Sale and by extension a purchase

10 (c) Yes ,very much so.

11. Yes, I have been using the Client Charter in its various guises for about 15 years in all my marketing literature

12. A complaint to the Membership Board should be all that is necessary, and for persistent breaches, expulsion. Estate Agents will actively and proactively shift people to those that use the scheme as it is in their interests. Joint promotion with the NAEA would help universal acceptance

13(a) Yes over time, once the membership scheme had obtained the necessary critical mass and public acceptance

13 (b) Yes and Yes

13 (c) Solicitor only and Membership with sanction against non conformity.

13 (d) Delay in implementing. The clock is ticking to have a meaningful product/service available to strengthen the Conveyancing solicitor brand.

14 (a) No, but complaints against poor performing members could end up in expulsion

14(b) Yes, Yes

15 (a) The simpler the scheme the better. A joining fee with a early bird discount would work to ensure sufficient funds for launch. Marketing does not need to be as costly, social media sites would be the way forward rather than expensive advertising. In fact I would ban outright advertising altogether and promote the scheme via firms websites, YouTube, blogs, Twitter etc.

Thereafter a yearly charge would be necessary.

15(b) There is no reason to look to a closure of the membership scheme.

15 (c) This would be directly related to the marketing and administrative budget which would be needed, and by a rough estimate of the number of solicitors likely to join.

15(d) Clearly the fewer transactions you conduct the cheaper it would be on a pay as you go scheme. This might put off the larger firms who are as integral to the scheme as the smaller firms. A dedicated website with paid advertising for different levels of prominence might be a way forward similar to Google’s Adwords