When I was younger, so much younger than today, I never needed anyone to tell me that I was brilliant because I knew that I was.
And, I knew that I was brilliant because my Mother had told me I was. And, my Mother wouldn’t lie to me about something as important as that.
As far as my Mother was concerned, anyone who had got a degree in the early 1980’s was practically a genius. And so, if I fancied doing a spot of conveyancing in the morning and perhaps a bit of brain surgery in the afternoon then I could, “If you just put your mind to it Christopher”.
Well, you can just imagine my surprise when, as a newly qualified solicitor, I found that other solicitors and clients did not necessarily have the same high opinion of me as my Mother. It was a terrible shock!
Fortunately, over the years, I have found that any lack of brilliance on my part has to a degree been made up for by experience. So, I thought that this would be a good opportunity to briefly recall a few of the changes to conveyancing over the last 35 years and, at the same time, highlight some of the main risk areas in current property transactions:
- Identification – Back in the day, I can remember almost laughing out loud at an auction when I overhead another solicitor asking whether it was all right to accept a deposit in cash rather than by cheque. It seemed only common sense that a cheque could bounce whereas cash couldn’t.
However, money laundering regulations and identity fraud now mean that accepting funds can be a criminal offence and solicitors must verify not only the identity of their clients but also that the conveyancer acting for the other party in a property transaction is a regulated conveyancer. An entry on “Find a Solicitor” should not be taken as verification that the firm is genuine!
- Pre – contract enquiries – These used to consist of three pages of general enquiries and a few extra leasehold enquiries. Today, in commercial conveyancing, there are well over 100 standard enquiries alone relating to all aspects of a property transaction.
The seller must make reasonable investigation to ensure that the replies are accurate and updated with any changes that take place before exchange and completion. A buyer’s solicitor needs to explain the outcome of pre-contract enquiries and searches and to follow up any unsatisfactory replies so that clients can take their own view.
- Break clauses – In recent years, the trend has been for shorter leases with a tenant’s right to determine the lease early. Sounds simple but, there is much that can go wrong in the service of the tenant’s break notice e.g. wrong method of service; wrong date; insufficient notice; wrong form of notice; wrong server identified; wrong recipient address; wrong accompanying payment; wrong property identified; and many more…
- Stamp Duty Land Tax – Payment of stamp duty used to require a simple one page form containing basic details of the property, the parties and their solicitors. Now, it has morphed into a full blown tax return which feels slightly longer than “War and Peace” by Tolstoy. But, without the interesting bits.
This form must be filed at HMRC within 30 days of completion to avoid an automatic penalty of at least £100 and the embarrassment of HMRC also notifying your client of this penalty if it is your fault.
Remember – There are a lot of very good lawyers out there who can help you avoid these pitfalls so do try and take their advice. They could not only help solve your problems but, if you are a fellow lawyer, make you look more brilliant than you actually are.
Anyway, that’s what I have always done.
Just don’t tell my Mother.
For more information, please contact:
Chris Cheatle, associate, Real Estate
T: 0121 234 0212
William Sindall plc v Cambridgeshire County Council  EWCA Civ 14
 Orient Holdings Ltd v Bird & Bird LLP  EWHC 1963 (Ch)