Monday 29 September 2014

A Solicitor’s Dual Duty


When instructed in a purchase transaction in which a client is seeking to rely on the aid of a mortgage, it is important to note that a Solicitor owes a duty not only to their client, but also to the client’s lender. Does a Solicitor, however, owe a general duty to report any information which may materially affect the valuation of the proposed security for the Lender? 

The answer to this question is evident in the recent High Court judgement of E.Surv Ltd v Goldsmith Williams Solicitors, published on April 10th 2014, which saw a conveyancing firm ordered to pay costs of £100,000.00 for failing to disclose information on the value of a property to their client’s lender. This article examines the decision of E. Surv Ltd v Goldsmith Williams Solicitors, which is likely to be of particular interest to lenders.

The case centres on Mr Gayler – the client – who bought a property in September 2005 at a cost of £390,000.00. The client sought to remortgage the property and consequently instructed E Surv Surveyors to value the property in November 2005, at which time he informed E Surv that he had bought the property six to twelve months earlier at a cost of £600,000.00. E Surv valued the property at £725,000.00. The client applied to a lender in December 2005 for a loan of £580,000.00 to be secured against the property, which was based on an approximate value of £725,000.00. E Surv’s valuation was not provided to the lender at the time of the application, yet the application erroneously stated that Mr Gayler had purchased the property in October 2005 for £450,000.00. During the course of their instructions, Goldsmith Williams Solicitors – who acted for client and lender alike – obtained the Land Registry’s Official Copies for the property, which disclosed that Mr Gayler had indeed purchased the property for £390,000.00 in September 2005; the Solicitors did not divulge this information to the Lender. The remortgage transaction completed on February 13th 2006 on the basis outlined above. Mr Gayler defaulted on his mortgage payments and the lender took possession of the property, selling the same at a significant loss. Consequently, the lender pursued the Surveyors and Solicitors, but only followed through their action against the Surveyors for their supposed negligent valuation. The Surveyors agreed a settlement with the Lender for £200,000.00, only to later pursue contribution proceedings against Goldsmith Williams – it is this resultant case with which this article concentrates. This case centred around two principal issues: whether the solicitors were under a duty to advise the lender as to the recent disposition of the property and correct purchase price, as well as whether the surveyors could prove that, had the solicitors done so, they would have issued a revised valuation to the lender. Whilst the solicitors argued that there was no causative effect as between any breach on their part and the lender’s decision, the Court held that the solicitors breached their duty by failing to report the purchase price, with the surveyors evidencing that, on the balance of probabilities, the bank would not have proceeded had this information been communicated. The Court ordered the solicitors to pay 50% of the surveyors’ cost to the lender - £100,000.00. The solicitors have since stated that they will be seeking to appeal.


In anaylsing the impact of the judgement made, it is important to examine a solicitors’ duties to a lender during the course of a transaction. The Council of Mortgage Lender’s Handbook (CML), which was introduced in 1999, provides comprehensive instructions to solicitors when acting on behalf of lenders in residential conveyancing transactions; in addition to this, there is also the Building Societies Association Handbook (BSA Handbook), which was brought into force in 2010. Prior to the introduction of the CML handbook, a solicitor’s duty to report matters relevant to the lender’s valuation was derived from common law and had been held to be a part of his duty of care and skill. This ‘Bowerman Duty’ was outlined in Mortgage Express v Bowerman [1996] PNLR 62, which held that ‘if, in the course of investigating title, a solicitor discovers facts which a reasonably competent solicitor would realise might have a material bearing on the valuation of the lender's security or some other ingredient of the lending decision, then it is his duty to point this out”. Nevertheless, the case of E Surv v Goldsmith Williams focused on provisions 4.1.1.1 and 5.1.1 of the CML Handbook, which respectively note the following: 

4.1.1.1: You must take reasonable steps to verify that there are no discrepancies between the description of the property as valued and the title and other documents which a reasonably competent conveyancer should obtain, and, if there are, you must tell us immediately

5.1.1: Please report to us immediately if the owner or registered proprietor has been registered for less than six months.

It is important to note that selling or remortgaging a property so soon after a disposition of the same does not fit within the usual pattern of residential home ownership;  you would need to question why the proprietor is looking to dispose of the property so quickly after its purchase. There are, of course, certain situations which have been excluded from provisions 4.1.1.1 and 5.1.1, which include, but are not limited to, a sale of a property by way of a personal representative of the proprietor, or a receiver or trustee-in-bankruptcy. As aforementioned, one of the key issues in this case was whether the Solicitors were obliged to inform the lender of the fact that Mr Gayler had purchased the property within the last 6 months for £390,000.00. Clearly, under the CML, there is no obligation on the Solicitor within provisions 4.1.1.1 and 5.1.1 to report to the lender the purchase price of the property. Therefore, a crucial question of the case was whether the ‘Bowerman Duty’ survived despite the introduction of the CML, or whether the obligations listed therein are exhaustive, leaving no scope for any further duties. However, the Court held the following:

‘…in my judgment what the Lenders Handbook, read with the Practice Rules and certificate of title, is intended to do is to identify and delimit the precise scope of the specific activities which the solicitor is being retained to do, in circumstances where the solicitor is faced with the difficult position of acting for two parties with potentially conflicting interests. It is not intended to exclude the general obligation to exercise reasonable care and skill in the performance of such activities…’

What can we draw from the judgement of this case? It is clear that from this case that the CML handbook does not negate solicitors’ wider duties of reasonable care and still owed to the lender, or indeed the client; the ‘Bowerman Duty’ should thus be read in conjunction with the CML guidelines. E Surv Ltd v Goldsmith Williams serves to find a happy medium between meeting the client’s and lender’s expectations with the responsibility in acting as a solicitor, as the solicitor has not been placed under an extended burden to obtain further information. What the case does underscore to a Solicitor, however, is the importance of reading and reviewing the information obtained carefully, so that any potentially prejudicial matters affecting the valuation of a property are brought to the attention of the lender.   

A big thank you to Bethany Slaughter a Trainee Solicitor with MJP Conveyancing for this insightful contribution 

Monday 15 September 2014

Mortgage Valuation Report

Your solicitor may ask to have sight of the valuation report used by your lender to assess your eligibility for a mortgage. In this article I look to explain why your solicitor needs to see a copy of the valuation. 

The CML handbook ( which governs your solicitors relationship with your lender )  requires  your solicitor to check the property valuation report. 

Your lender may not have  provided your solicitor with a copy of this document and because of this your solicitor will seek from you a copy of the valuation report which should have been sent to you direct.

Why does  your solicitor need to see this particular document?

Your solicitor must check that the correct property has been valued (by checking the address on the valuation against that on the contract or title) and that any assumptions made by the valuer, such as tenure, restrictions on use, availability of parking etc are correct.

Your solicitor must report any errors or omissions to the lender so that they can ask the valuer whether the valuation needs to be revised as a result of them. 

Even if you have provided your solicitor with a survey/homebuyers report  your solicitor will not be able to discharge his duty to the lender without sight of the valuation report. 

MJP Conveyancing  are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Gifts and buying a home

More and more property transactions are being funded in part by gifts from parents and other members of the family.  The involvement of a gift has implications which your solicitor is obliged to address and which will normally involve additional work.  

In this article I examine the obligations on your solicitor when you are purchasing a property with a mortgage and where you are receiving a gift to assist in the purchase of your home. 

The CML handbook ( which governs your solicitors relationship with your lender )  requires your solicitor to enquire of you as to how you intend to fund the balance monies - that is to say the difference between the purchase price and the amount borrowed under the mortgage. If your solicitor becomes aware that the balance is coming from somewhere other than your own savings or the sale of an asset (such as another property), for example a loan, or gift or second charge, then this must be reported to your lender.  

Your solicitor  will require your consent to make the report to your lender, and in the event that consent is not given your solicitor must return the lender's instructions (the mortgage offer) and explain that he can no longer act for you as a conflict of interest has arisen.  

If it is a gift of money your solicitor will need to obtain from the donor of the gift a letter to confirm that the monies to be advanced are a gift ( and will not be repayable) and that the donor will not by making the gift be looking to acquire an interest in the property. 

In addition, when acting in the purchase of a property at undervalue, or the purchase of a property by way of gift, your solicitor is required to obtain a clear bankruptcy search against the donor of the gift or seller  ( where there is a sale at undervalue ) and also obtain indemnity insurance. The reason for this is that if the donor of the gift or seller should become bankrupt within 2 years of the making of the gift/selling the property, the Official Receiver has the power to recall the gift.  Your lender therefore requires insurance to cover this eventuality. 

MJP Conveyancing  are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidpett@m-j-p.co.uk

Tuesday 12 August 2014

Your Guide to the Digital Property World

With more and more of us having access to the internet through tablets and smart phones, it should be of no surprise that there are an increasing number of websites available to satisfy the digital appetite of the property seller/purchaser.  

At one time the focus of these website was the professional, however the emphasis has clearly changed with more and more online portals popping up to provide the consumer with direct access to information.

The increasing number of house price indices will soon be challenging the number of coffee outlets! The better of the bunch include http://www.zoopla.co.uk/  and http://www.rightmove.co.uk/ these website offer the consumer not only access to the national property market but also offer information on latest UK house prices.  They also offer a range of sold price information databases, meaning that consumers have a much more accurate view on how much a property might be worth.

You can also take a look at the crime rate for the postcode by visiting www.crimerates.co.uk/
If the standard of local schools is of importance you can find the latest Ofsted inspection report rating here: www.locrating.com/

If public transport is important check the location of the local bus/train station and timings of buses/trains by visiting: www.transportdirect.info

Check your mobile phone reception and broadband speeds within the home. The following website shows some of slowest areas in the country: http://on-msn.com/VwkVWd

As for the conveyancing process is concerned, the bad news is that there is still a lack of products on offer which enable a consumer to access information and documents during the course of a transaction.  

Www.quickcoveyance.com offers some relief by providing the consumer with 24/7 access to post, conveyancing documents, solicitor updates and legal reports generated during the course of the transaction.   These are all presented in an online and client specific property log book which can be accessed even after the transaction completes.

My firm makes use of this portal and since it was made live in 2011 it has helped handle 29,000 transactions.  It clearly used by our clients having recorded in July of this year over 16,500 views.

The Law Society Portal which will be launched soon promises more of this type of portal – only time will tell if it the Law Society can for the very first time deliver a product which will be adopted and preferred by professionals and consumers alike.

Morgan Jones and Pett are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Saturday 31 May 2014

Demand more for the fee you pay to your estate agent

I always make a big effort to manage my clients expectations when  taking on new instructions. I do this because some clients may be buying a home for the first time and other clients arrive on our door step with  a distorted expectation stemming from discussions with the estate agent.  I am not sure why some agents believe that conveyancers  have attended Hogwarts.  I am certain however that by providing a client with misinformation about the conveyancing process some agents simply do not do their clients any favours. 

You pay your estate agent a small fortune to market your property and perhaps the time has come for us all to expect the agent to do more than put a ‘For Sale’ board up and place a few advertisements in the local newspaper.  A simplistic view I know and I must qualify the preceding and following observations by acknowledging that not all agents are the same.  There do exist pro active agents who often prove very helpful. 

So what could the agent be doing to help to speed up the process of a house sale?

To begin with it would be good to know that your agent has some knowledge of the legal process behind selling and buying a home.  How many agents have actually taken the time out to spend time with a conveyancer to understand the steps involved and more importantly the reasons why delays can arise.   If an agent devoted the same amount of time to learning about conveyancing as some agents  do in chasing a conveyancer for updates there would be vast reduction in the the number of interruptions conveyancers receive each day and a massive improvement in turnaround times. 

I did send an email around not too long ago inviting agents to a free training session.  The idea was to provide an overview of the selling and buying process.  Surprise, surprise I did not receive one acknowledgement let alone an acceptance! 

If you sell a home there are what are known as transaction forms to complete.  These set out details on the property such as council tax banding and particulars of the items you are leaving in the home.  These are forms which normally take a client sometime to compete and there are some clients who need help in completing the forms.  I have never understood why the selling agent does not hold a stock of these forms so hand to clients when it comes to the marketing of the property.  It would save so much time and allow the conveyancer to send out the contract pack much quicker. 

Helping the client to get  together to pass to the conveyancer the warranties, guarantees and planning and building documents would also make life so much easier for the conveyancer.  We spend so much time on chasing clients for forms and documents and this is often the source of major delays. 

Once the transaction is up and running the agent should not telephone/email the conveyancer every day seeking an update.  Rather than helping these constant interruptions only serve to cause delay.  We have ploughed several thousands of pounds into developing a state of arts online tracking systems which clients love and which is accessed by our clients around 13,000 times each month.  The system also allows the selling agent on sales to receive the same updates but to actually get an an agent to use it is simply impossible.  The mentality is why should I access an online system when I can try and get the information by telephoning.  Agents seem obsessed by the telephone.  

Last month our support team took over 4000 call of which 70% were from agents.  These calls involved over 150 hours of manpower which we could have used far more usefully in progressing transactions. 

The other way agents could help and is to give up on creating a blame culture.  Some agents enjoy playing one party to a transaction against the other.  Why?   All it does is to fuel unnecessary stress and make the whole process even more painful. 

The agent could play a far bigger role in helping the conveyancer when it comes to fixing a completion date.   This can often prove to be a logistical nightmare and trying to get the agent to call the other agents involved to come up with a mutually acceptable completion date would help to save so much time and wasted energy. 

I suppose what I am trying to say is that if there was a closer working relationship between the agent and the conveyancer, and a better understanding of the selling and buying process on the part of the agent,  the time it takes to sell a property could be much shorter and less stressful.  Is this likely to happen in the future?  I very much doubt it.  Agents are not going to change when there is no need to do so given the very high fees they charge. Why do more work than is necessary?

Perhaps some conveyancers who pay agents for referring home sellers to them are partly to blame.  Would they really wish to do anything that could rock the boat?

Morgan Jones and Pett are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Monday 28 April 2014

Conveyancers help to fight crime

Solicitors always ask clients for lots of information when they are buying a property. Two of the most important pieces are identification and Source of funds. 

Solicitors  gather this information to ensure their clients are who they say they are and to play their part in preventing crime.

In this Article Katie Easter, trainee with MJP Conveyancing, looks to explain the reasons behind the inquiries solicitors undertake to ensure as best they can that they are not used a a conduit for criminality. 

Anti-money Laundering

Source of funds is closely linked to anti-money laundering purposes. Identification takes away the possibility to commit money laundering whilst remaining anonymous. It can also make it easier to catch previous offenders. Establishing the source of a client’s funds when purchasing a property allows law firms to be vigilant against any suspicious sources. This helps to prevent criminals passing the proceeds of crime though law firms’ client accounts.

The ‘risk profile’

Law firms are encouraged to build a ‘risk profile’ of their clients with the information gained from identification and source of funds. Each client can be considered low or high risk in relation to money laundering depending on the source of their funds and any discrepancies between identification documents. 

Once a client’s risk is ascertained, any changes to this throughout the transaction can alert a law firm to the possibility of untoward behaviour.

At MJP we use a Source of Funds form with questions such as:

·         Are you purchasing with the help of a mortgage?
·        Please also ask [any other] party concerned to produce evidence of identification in the form of a passport or photo card driving licence and a utility bill delivered within the past two months

These help us to build a picture of each client to enable us to monitor the possibility of criminal activity throughout every transaction.

Cash Purchasers

Law firms are advised to ask for additional documentation to show their client’s source of funds where there is the potential for more risk. 

Cash purchasers can be considered more of a risk compared to individuals purchasing with the aid of a mortgage because mortgage providers carry out their own checks against each customer. In contrast, cash in a bank account is not necessarily ‘clean’ and cash purchasers can therefore find that they are asked for more information about where their funds originate from.

Why has the person giving me a cash gift for my property also been asked for identification?

All money coming into a law firm should be monitored with the use of identity and source of funds checks.  This includes money that comes from an individual that may not actually be a client. This is intended to prevent clients attempting to purchase property with another person’s funds that could be the proceeds of crime. 

The main thing to note

Clients can be concerned that law firms are actively seeking to accuse them of money laundering. This is not the case. Although law firms and particularly conveyancing departments are responsible for ensuring that the proceeds of crime do not pass through the firm’s accounts, they are not policing money laundering. 

Law firms strive to maintain constant vigilance to prevent crime without handing in every cash purchaser and wealthy client that is purchasing a property!

Morgan Jones and Pett are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

Tuesday 22 April 2014

I am frustrated with my conveyancer

‘I am frustrated with my conveyancer as the whole process is taking far too long’ - I hear this from time to time despite the efforts we make at the outset to manage a client’s expectation.  It’s easy to blame and vent anger in the direction of the conveyancer but more often than not the source of the frustration lies elsewhere.

For most home buyers, once they have had an offer accepted on the property of their dreams the next thing they want to do is to start picking out furnishings and make plans to move.   In simple terms  one party wants to buy and one party wants to sell, what could be simpler and why should it take so long for the formalities to be sorted?

The reality is that there is no set timetable when it comes to a conveyancing transaction and so things only progress as quickly as the slowest moving part of the chain.  At a time when banks are now looking closely at their lending criteria it can often be the case that a buyer may have to jump through more hoops that previously in order to satisfy their chosen lender.  Also, one person’s idea of urgent may not necessarily accord with another’s, and buyers and sellers can face dealing with people and or their representatives who may not share the same views on how quickly a transaction should proceed.

People have their own agendas and rightly so often decide to keep these very much under cover.  So even though on the surface he objectives are in common with each other there often exist complications which make it difficult for the conveyancer to push through things quickly.

If there is a sizeable chain of transactions then it is possible that one transaction can be ready to proceed fairly quickly, but is delayed whilst transactions elsewhere in the chain deal with complications.

Managing expectations and recognising that most conveyancing transactions will have complications or reasons for delay which are beyond the control of the conveyancer makes it advisable that buyers and sellers should not set their hearts on any specific dates for completion. 

There is no harm if parties wish to work towards target dates, but moving home is stressful enough without adding in the stress of trying to complete a transaction by a specific date, which may turn out to be non - achievable. 

Estate agents often raise expectations and set timetables which are unrealistic and for this reason it’s always advisable to speak to and rely only on the guidance given by your conveyancer.


Also keep in mind that the conveyancing process which has not changed since 1925 is antiquated and is not designed to promote a quick and efficient transaction.  On the contrary it often contributes to delay and makes it difficult and costly for the home owner to sell and or buy.  But that’s a different story! 

Morgan Jones and Pett are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

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