Legal thoughts on the Call for Evidence: Opinion Piece

A qualified lawyer, Shirley Ann Fisher, provides a range of legal and financial services for the expat community in the Murcia region of Spain. She also has a solid background of working in private practice in the UK as well as the residential conveyancing market. Shirley continues to act as locum as and when required.

Here, she shares her responses to the Government’s ‘Call for Evidence’; released last month, this aims to gather opinions and views on how the home moving process can be improved.

The consultation is open until 17 December – it can be accessed here.

Should the industry do more to make customers aware of how to complain?

Why should it be about complaining! There is too much about that already! I think buyers and sellers need to be made aware of WHO IS WHO and what their role is i.e. estate agents are not qualified and lawyers are. Lawyers act in clients best interests and have responsibilities in law. There should be no blurring of lines – the consumer needs to be educated.

I think buyers and sellers need to be advised how they can prepare themselves for a transaction and how they can assist the lawyers with the process of their matter. Basically “getting your house” in order – before you have bought it.

Should the government take further action to enforce current transparency regulations regarding disclosure of referral fees?

Yes, I think they should! I think referral fees have not been a constructive tool for buyers or sellers as is too much open to abuse and cannot be considered to be used on a subjective basis. Sadly, I hear of many cases where an estate agent has persuaded a consumer to Instruct a particular lawyer for their own reasons.

What would the impact be of banning referral fees?

The banning of referral fees would assist a clearer distinction in the process.  If a legal practice is so dependent upon referral fees, serious questions have to be asked as to why they have to pay them in order to receive work from estate agents and other introducers.

Should the government introduce more regulation for estate agents?

Yes – estate agents should be subject to more compulsory registration and work under clearly defined rules. They should be bound to be more responsible and have some form of insurance cover. They should insist on seeing evidence of ownership of property in the case of a sale and evidence of identity and address in all cases. It would be helpful if they were to operate a Land Registry account for access of relevant documentation to establish ownership and assist a consumer – which would give them useful information at an early stage.

What should the industry do to help consumers make more informed decisions when selecting a conveyancer?

There could be compulsory government links on the estate agents’ website which set out who is who and how to choose a legal professional. Obviously, cost may well be a factor but the emphasis should be on the consumer engaging a qualified and experienced lawyer of their choice who is working for them!

What improvements can be made to the process of property searches in order to speed up home buying and selling?

The emphasis should be on disclosure of information to assist a consumer, ie setting it out in an easy to read format indicating certain points of concern to be discussed with the Solicitor and also that further enquiries and information may need to be obtained. The consumer could sign to confirm awareness of all this so that they are more proactive at this stage of the transaction.

Would there be an advantage to encouraging buyers and sellers to use the same conveyancing provider?

I don’t think this would be advisable or feasible – the Law Society would have to change the basis of the liability insurance. Even in countries where one lawyer can act for both sides it is not advisable. Even if there is no conflict of interest at the outset, one can arise during the course of a transaction.

How would a predominantly digital conveyancing process affect home buyers and sellers?

This needs a lot of thought at different levels – see below.

What should the government do to accelerate the development of e-conveyancing?

I don’t think that this is a step which can be progressed at this current stage.

We need to make the process easier and more transparent first.

Are there any particular public sector datasets which you think should be released as open data in order to drive innovation in the home buying and selling process?

This is something which should be discussed at seminars so that awareness within the profession can grow, and the industry can put forward feedback on utilising particular public sector datasets. From there it can be established how it could help the digital conveyancing process. The centralisation of Land Charges with the Land Registry could be a start.

Land Charge information could be made available digitally from the Land Registry in a standard format at a standard fee at a standard turnaround time.

How could other parts of the home buying and selling process be improved through better use of digital technology?

Consumers could read explanatory information about the process from the outset e.g. from the estate agent as well as by being guided by government information. Maybe it would be an idea for the consumer to receive the results of the searches direct as well as the lawyers – this way, they can study these before speaking with the lawyers – the providers would need to work on some of the terminology to make it jargon free.

What more could be done to encourage borrowers to seek a Decision in Principle from their preferred lender before they start house hunting?

It is an ideal situation for any buyer to have a decision in principle before they make an offer on a property. It should be a function of the estate agents that they encourage a buyer to obtain this at the outset before they begin to look for a property. This could be made a mandatory requirement.

What other improvements could be made to the process of applying for and obtaining a mortgage?

Lenders need to establish a streamlined process; they should ask the consumer to complete an initial application and set out the documents required in order to assess the decision in principle. Then they could issue a document to confirm the position which the consumer can then show to the estate agent and their Solicitor.

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