When it comes to the process of conveyancing, I’ve written before that the industry is not always singing from the same hymn sheet, and that presents a problem.
While we might like to think we can all see the value, for example, in the provision of upfront information, greater transparency, a push towards certainty, etc, there are some fairly large vested interests who appear to prefer either the status quo, or a version little changed from it.
For instance, I read one article recently which seemed to suggest you could have too much upfront information, and this surfeit of information might confuse the consumer, especially if they construe it to be negative even if it turns out not to be.
But this is why we want early involvement from the conveyancer at this part in the process, who will be able to advise the client on whether their perception is actually correct, or in fact “nothing to worry about”. The point surely is that if you don’t have this information to start with, then how can you determine its veracity, its relevance or potential impact? Finding out weeks, even months, into the process merely prolongs the agony and inevitability, doesn’t it?
This commentator appeared to suggest they would rather not have information provided upfront which might be perceived as negative. I would suggest this is exactly why we need that information to be delivered as early in the process as possible so the professionals can take a view and provide that guidance to the consumer.
At the end of March, a large number of industry bodies and organisations launched the latest version of the Buying and Selling Property Information (BASPI), our attempt to provide the information required from “one source of truth”, to cut down on the duplication in the process, and ensure all parties were proceeding at the start of the process from a position of strength.
Over the course of the last few years, as we’ve been bringing this to market, we have dealt with several myths being touted by those “vested interests” about why it won’t work, it can’t work, and why we should put our resources elsewhere.
For instance, we’ve been told sellers won’t pay for it to be provided, when our consumer research showed 96% believe the provision of upfront information is key and 65% said they would pay £300-plus to provide it.
Or it would reduce the amount of housing stock coming to market. Even though when Scottish Home Reports were brought in, it didn’t stop Scottish property owners putting their homes up for sale, and as a result, the number of failed transactions north of the border is two-thirds less than in England & Wales.
One of the other major accusations levelled at the BASPI/upfront information is there is simply no requirement for it. This seems to suggest no requirement equals no value when that’s clearly not the case. Indeed, we can also point to a number of areas which show that requirement is clearly there but may simply be being ignored.
For instance, you’ll likely be aware that the National Trading Standards Estate and Letting Agent Team (NTSELAT) has recently launched a three-phased approach to the delivery of material information under the Consumer Protection from Unfair Trading Regulations. However, we freely admit that, until solicitors accept the requirement for that information and review it to advise the seller if they have an issue which can be resolved, and advise the buyer whether there is anything which could impact their intended use and enjoyment or ability to get a mortgage on the property, nothing will change.
This is not helped, of course, by the fact that solicitors might be under the mistaken apprehension that “Buyer Beware” means they cannot advise sellers upfront what they should do because it might increase their liability.
But recent case law heard on appeal at the High Court in February – SPS Groundworks and Building Ltd v Mahil [2022] EWHC 371 (QB) – confirms the seller has a duty to disclose this information, so solicitors really do need to advise sellers on solving defects prior to sale agreed or advising potential buyers of defects prior to offer. Just providing a copy of a “dodgy” lease is not going to be enough; you have to explain that the lease is “dodgy” in the marketing material for the property, according to this case.
This effectively over-reaches “Buyer Beware” and should certainly be taken seriously by all concerned. Our most recent iteration of the BASPI tackles this and has added in questions on defects at the property such as spray foam insulation, and also points the consumer towards sources of information to help them disclose any defects. For example, deeds packets provided by the conveyancer or Property Logbooks. However, the review of the legal title by a conveyancer will be key to identify for them defects which might impact a buyer’s transactional decision.
Other myths on this issue can be busted too, such as the insistence on requiring a TA6. The newest version of the BASPI answers all the questions in a TA6, and there is no obligation to use the TA6 in the CQS Protocol where it is not in the best interests of the client. Given the SPS case mentioned above, it is clearly in the seller’s best interests to disclose all defects upfront and the TA6 only asks the legal points and not more opinion on quality. And good news: the SPS Groundwork case ruling also referenced that the seller is not caught by the Misrepresentations Act for mistaken opinion so we can bust that myth on liability too.
And finally, what about the argument from some that they can’t trust the data provided to them by the estate agent? Well, the HBSG Technology sub-group has created a Property Data Trust Framework so where the BASPI can be populated with authority data, the provenance of the data can be authenticated meaning solicitors know they can trust it.
Of course, the reason for the development of the Property Data Trust Framework is to enable the information to be captured digitally which then means that an exception summary can be advertised showing the material information rather than all the irrelevant information, so our commentator need not fret about that either.
Shockingly, of the Propertymark members who responded to their member survey, 67% of the member estate agents do get a questionnaire completed for the CPRs and 68% of them send the information with the memorandum of sale to the solicitors, yet it seems like solicitors are not reviewing the data or asking for it if not supplied. This is despite the first regulatory principle under which solicitors operate being to act “in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice” and of course there is a legal requirement on the estate agent to disclose material information, so how do the solicitors know the basis on which the sale was agreed if they do not ask what material information has been disclosed?
Does this mean that whatever NTSELAT deliver through the property portals will make no difference? Will the solicitors still be waiting for the TA6 before advising their client rather than upholding the rule of law and asking for the material information which legally should have been obtained under CPRs?
We really can’t keep paying lip-service to change in the sector or placing obstacles in front of the provision of upfront information, especially when it is only done to feather one’s own nest. Our industry deserves a process which is fairer and so, more importantly, does the consumer.
Beth Rudolf is Director of Delivery at the Conveyancing Association (CA)
