Conveyancing Reforms: The Emperor's New Clothes Strike Again
- AuthorPaul Hajek
It is always refreshing to see a widely held but misguided belief challenged.
Every now and then one must politely request the Emperor to check his new clothing.
A paper released this week, by the Legal Services Institute, and discussed by Professor Stephen Mayson, (pictured on the right) one of its directors in the Gazette this week, pours cold water on the perceived inevitability that the Conveyancing market should be opened up to all and sundry later this year.
Conveyancing, at present has certain procedures that only Solicitors or Licensed Conveyancers can carry out; so called reserved instrument activities.
The Legal Services Board has power given to it by the Legal Services Act 2007 to recommend changes to the current list of reserved activities.
Conveyancing is an area where such reserved activities were expected to be lifted.
Professor Mayson and his colleagues argue that a simple test should be applied to gauge whether the reserved activities should be relaxed or further tightened.
The test in Conveyancing should be whether changes in legislation will act in the public interest or for the protection of the public good.
The paper highlights the anomaly in Conveyancing where the reserved activities centre on the rather narrow preparation of the contract and preparation of transfer deeds.
This is not in the scheme of things a worry for consumers.
There is, however, a public good in having an effective and reliable property market.
What is more important than who prepares a contract, is the protection afforded to consumers in Conveyancing chains of transactions and simultaneous completions where 100’s of millions of pounds change hands on the fundamental premise of undertakings from solicitor to solicitor.
The dangers of Joe Bloggs Conveyancing Limited preparing a defective contract would pale into utter insignificance, where the probity of relying on an undertaking from such a firm, to undertake to pay off a mortgage and/or transfer funds on completion, were concerned.
The argument for an extension of the reserved instrument activities matters in Conveyancing rather than a relaxation is indeed a powerful one and one that should be in the forefront of debate leading up to the implementation of the Legal Services Act later this year.