Sailing through

The Law Society Conveyancing Protocol came into effect on 1 April 2011. The intention was for it to set out the obligations of solicitors to clients in a way that assists clients in what is usually the biggest financial transaction of their lives, outlining the procedures and helping them to understand more about what they can expect in relation to the conveyancing process and service standards. I think many solicitors forget that it is the client who is at the centre of the transaction and has to be kept fully informed throughout. Furthermore, lender clients also have to be kept updated as to a transaction, especially if there is a matter that may cause them to review their lending decisions.

Use of the protocol is mandatory for firms accredited under the Law Society’s Conveyancing Quality Scheme (CQS) and voluntary for other firms.

In this article, I look at how the protocol is working in practice. Which are the steps that are routinely overlooked? Which are the steps that cause frustration to other solicitors?

The protocol

The 2011 protocol was very different from the transaction protocols that preceded it. It seeks to encompass the relationship with others in the transaction, such as surveyors, estate agents and mortgage brokers. It aims to make the standards expected of solicitors dealing with the house-moving process transparent to all. It is not intended to be used as a checklist for conveyancers, and the steps in the protocol are not exhaustive. It is important to remember that the obligation to act in the best interests of the client takes precedence over the protocol.

The protocol starts with the ‘general obligations’. These include such matters as:

• co-operating with others and treating them with respect
• sharing information with others to ensure that a chain may be managed efficiently
• responding to all communications promptly or in accordance with agreed timeframes
• maintaining high standards of courtesy and dealing with others in a fair and honest way
• maintaining vigilance to protect against any fraudulent or illegal behaviour that may be encountered during the conveyancing process
• dealing with transaction materials efficiently and with care and consideration
• using the most up-to-date forms, formulae and codes as provided by the Law Society.

Common breaches of the protocol

It is apparent that there are often some breaches of the general obligations of the protocol before a transaction ‘properly’ begins. Take, for example, the obligation to deal with transaction materials – one of the most common complaints to the CQS office is about the sending of draft contract documents by email. It is very annoying to receive an email containing a contract and supporting documents (property information form, fixtures and fittings form, copies of the title and so on) when there has been no previous letter from the seller’s solicitor confirming that they are acting and for whom, and there has been no enquiry as to whether the buyer’s solicitor is prepared to accept the draft contract documents by email.

Step 22 imposes an obligation on both parties’ conveyancers to confirm use of the protocol and to provide various pieces of information about the proposed transaction, such as the property address, the price, and whether or not there is any related transaction.

At the same time, each conveyancer is under an obligation to advise the other party’s conveyancer of the name of the person handling the transaction and their supervising solicitor or regulated principal. When the senior responsible officer signs the CQS application, they undertake to comply with the protocol, but it is alarming to see how many firms do not provide this basic information. There is an increasing tendency for firms not to send this initial letter, but just to send a bundle of draft contract documents without any introduction. Not only does this mean that there is a breach of step 22, but also, one party has unilaterally decided how they wish to proceed without taking into account how the other party may wish to transact.

So are there other steps that cause annoyance or frustration, or breach provisions of the protocol? I am sure that we all have those areas which cause irritation, but the following cover some of the steps that are commonly mentioned to me, and some that are also regularly encountered by the CQS office at the Law Society.

Step 12(5)

This covers the provision of information relating to the sale of a leasehold property. I believe that the seller’s solicitor should request the leasehold information pack at the start of a sale of a leasehold property. However, it is often the case that the seller’s solicitor will wait to be asked for the pack, and will then request the funds from the seller. A seller’s solicitor should tell the seller at the outset (even as early as when giving a quote / breakdown of fees) that there will be a charge for the provision of the leasehold information pack and supporting information, even if the actual amount is not known at that stage, and that the cost of the pack will need to be paid at the start of the transaction. This means that it is then up to the seller as to when the payment is made, rather than having to wait to be asked for it. A solicitor should know at a very early stage whether a property is leasehold and should make appropriate enquiries regarding the identity of the managing agents and/or freeholder, rather than waiting to be asked. One of the main causes of delay is in the provision of information from managing agents, and although a solicitor cannot speed up that part of the process, asking for the pack when initially instructed will save time.

Step 19

This step requires the seller to update replies to enquiries if the forms were completed more than two months ago. It is very common to receive a property information form and a fixtures and fittings form that were completed for a previous transaction. First, it is incumbent on the seller’s solicitor and/or the estate agents to disclose the reason as to why the sale did not proceed; and second, the seller’s solicitor should confirm that the contents of the forms would be the same if they were completed again at the point of the new sale being agreed. This would mean that there would not need to be an additional enquiry concerning the forms.

Step 24(1)

This step discourages the addition of further clauses to the contract. These should not be included unless they are necessary to accord with current law, or specific and informed instructions have been given by the seller that inclusion of such clauses is necessary, and they are required for the purposes of the particular transaction.

Step 32

This step covers additional enquiries: if inappropriate enquiries have been raised, answers need not be given. Furthermore, the protocol states that the buyer’s solicitor should only raise those specific additional enquiries which are required to clarify issues that arise out of the draft contract documents supplied, or which are relevant to the particular nature or location of the property, or those enquiries which the buyer has specifically requested. Any questions relating to the state and condition of the building can be answered by the buyer’s own enquiries, survey or personal inspection. The seller’s solicitor does not need to answer such enquiries, nor do they need to obtain the seller’s answers to any enquiry which seeks an opinion rather than is a fact.

Step 33

This states that the buyer’s solicitor should report to the buyer on the documents received as they arrive, and should not wait for all documents to be received before reporting, as this can cause delay, especially in relation to raising further enquiries. However, there are some larger conveyancing factories that do just this: they do not raise enquiries until they have received the mortgage offer, the result of searches and the draft contract documents. In most of these cases, it is the draft contract documents that will have been the first set of documents to land on the buyer’s solicitor’s desk, and I believe that initial enquiries should be raised at that stage. It is frustrating to find that a firm will not raise any enquiries until it has everything, because it then appears (to both clients and estate agents) that it is the seller’s solicitor who is causing delays, when it is clear that such delays could and should be avoided. When encountering one of these firms, I think that it is incumbent on the seller’s solicitor to make it clear to their selling client that enquiries will be left until the last minute, so they should be prepared! This avoids any complaint from the estate agents or the selling client as to what is causing the delay, as you have already warned them as to what is likely to happen.

Step 43

This provides that ‘the fullest information is made available as to the status of other transactions in the chain’. This is where, I believe, estate agents can play a vital role. Estate agents will carry out their own ‘chain check’ before agreeing a sale. Some agents will disclose the various links of a chain when issuing a memorandum of sale, and I believe that this is to be encouraged.

However, it is frustrating to find out, halfway through a transaction or just before exchange of contracts, that there are more parties in the chain than had initially been thought, or that one party is having to remortgage a property in order to provide a deposit for the property being bought. Clients assume that we, as their legal advisers, know everything that is going on, when in fact the complete opposite tends to be true. We are usually the last ones to be told anything, so insignificant is our role seen to be! As conveyancers, we should all be insisting that estate agents provide us with the chain details so far as they are aware of them at the start of a transaction. Perhaps we could discuss with our local agents the possibility of introducing some sort of pro forma for chain details to be sent initially with the memorandum of sale.

Step 56

One of the breaches I commonly encounter is when a seller’s solicitor does not provide a copy of the signed transfer deed prior to completion – the requirement to do so is contained within step 56. A number of recent cases have centred on the execution of transfer deeds, so it seems to me sensible to request a copy of the transfer deed (or, if acting for the seller, to send a copy with the replies to requisitions on title) so that you know that there will be no hitches after completion caused by the late discovery that the seller has not signed the transfer deed.

References to Sindall

Any statements relating to William Sindall plc v Cambridgeshire County Council are generally not acceptable, as the buyer is properly entitled to rely on all statements made by the seller or their conveyancer. If the seller does not wish the buyer to rely on statements, they should not make such statements, or should otherwise qualify which statements the buyer should not rely on.

Notice to complete

Clauses purporting to charge additional costs for the service of a notice to complete are not acceptable, as they are likely to be treated as a penalty clause, since the contract is drafted to provide for the ‘contract rate’. The contract rate is designed to provide liquidated damages in the event of default by either party, and having both may amount to a penalty clause which may not be enforceable.

Raising additional enquiries

There are three questions that you should ask before raising such enquiries:

1. Do the circumstances of the transaction require them?
2. Do you have specific instructions to include them?
3. Are they needed in order to act in your clients’ best interests?

Many of the enquiries that practitioners believe are necessary and which pass the above tests do, in fact, duplicate matters which are already dealt with in the Standard Conditions of Sale. A lack of familiarity with the standard conditions should raise questions for other conveyancers.

If used and applied properly, the protocol can save time. Making clients and estate agents aware of its existence is imperative to building a system which, although it is by its nature stressful, makes clear what is expected from all parties.