Old thoughts for a New Year
It was only last month that I had a few words to say about the importance of searches and enquiries before contract. The horrendous floods we have seen in various parts of the North of England – and indeed parts of Wales as well – bring me back to that same old chestnut. The potential risk of flooding must now be one of the most important matters that a home buyer would be concerned about in deciding upon a new home. But still many conveyancers do not undertake a flood search of some sort – flood information is usually included in a standard environmental search, of course – as a matter of course when acting for buyers. Indeed some do not even tell the buyer that such things exist and thus give the client the option of having one commissioned.
Of course, such searches are not perfect and may not have revealed that all the properties recently flooded were at risk, but they are a whole lot better than doing nothing. And what if a flooded client asks why such a search was not undertaken on their behalf? What explanation can we give?
As we all now know the adventure has failed. Am I the only person disappointed in this – that actually hoped that it would work and bring conveyancing into the 21st century? However, failure was probably inevitable when it was discovered that what was on offer was considerably less than originally promised.
Others have commented on the financial cost to the Law Society – and hence solicitors as a whole – of this failure – but why has there been no immediate announcement by the Society of an enquiry as to how the decision to proceed was made and why many millions of pounds of members’ money was lost?
There is also the cost to the Law Society’s reputation with high street solicitors by this failure. Unfortunately, for many it has simply confirmed their previous views!
But is it not now time for conveyancers themselves to get together and conduct a thoroughgoing review of conveyancing practice and procedure. There must be a way that things can be speeded up and made less complicated for clients and conveyancers alike. A root and branch review of the whole system is needed.
Do we still need the two stages and two legal documents in a transaction – contract and completion? We frequently exchange and complete on the same day – why not investigate the possibility of a system that did away with the contract stage altogether? If the terms of the current contract are really relevant after completion, why not just incorporate them into the Transfer?
And what about the Scottish system of conveyancing and land registration – are there any lessons to learn from our near neighbours?
Why do some firms still communicate primarily by letter – why cannot all communications be by email and all documentation sent electronically? Many firms are heading that way anyway, but many still lag behind. It is not only quicker but also cheaper.
And what about searches and enquiries? Should it really be a matter for the conveyancer to get involved in many of the areas that the Property Information Form and modern searches expect us to? Is flooding or Japanese Knot Weed, for example, a legal issue? Where should we draw the line between what we should and should not advise on?
Buy to Lets
As we are all aware, one of the boom areas in recent years has been the increase in the number of purchasers buying properties to let out. Sadly, the boom days for buy to let landlords seem on the way out with forthcoming changes in taxation. But what is particularly sad is how we have not been able to use the boom as a way of generating more legal work for ourselves. Virtually all the lettings entered into by buy to let landlords are dealt with by the letting agents, not by lawyers. Why?
A short term tenancy agreement is a legal document involving many complex issues. It involves many of the same issues as when a leasehold house or flat is being purchased. There are both good and not so good letting agents, but most of them do not have the legal knowledge or expertise to advise landlords on the terms of a letting agreement.
The precedent agreements used by letting agents have usually been drafted by solicitors and are usually very comprehensive and legally effective. It is when the facts of the particular letting don’t fit in with the terms of the agreement that problems often arise. Changes are made by the agents that are sometimes uncertain in their meaning and are not always legally effective where the wording is certain. Similarly, the letting agents often do not understand the implications of the terms in the agreement they are using. That is always the risk when non-lawyers are carrying out legal work.
So next time you are acting on a buy to let purchase why don’t you tell the client about the legal risks involved in letting property and how he/she ought to have legal advice on the terms of the agreement and that you are better able to give this than the letting agent. Letting agents are good at finding tenants; lawyers are good at complex legal agreements.
A local letting agent charges £300 for the ‘drafting’ and execution of the letting agreement. Very good money indeed for filling in the details of the parties and property, the rent and the term on the form used. Cost is not an issue as this is usually paid by the tenant anyway, but it does emphasise that there is money to be made in this area.
A happy and prosperous New Year to all!