Are conveyancers moving closer to a 'strict liability' regime for property related fraud?

Are conveyancers now looking to be held strictly liable for all identity related fraud stemming from conveyancing transactions?

Though we might not be there quite yet, it seems we have moved one step closer with the news that solicitors Mishcon de Reya have been found liable for breach of trust after its client was duped into buying a London property from a tenant posing as the owner.

I have not seen the transcript of the judgment but from what I have read it seems the claimant, the purchaser client, was left out of pocket to the tune of £1m when it came to light that the seller was not the legal owner of the property, but rather the tenant purporting to be the owner.

The deputy High Court judge David Railton QC found in favour of the claimant in action brought against Mishcon de Reya based on a breach of trust.   The judge found that Mishcon, presumably as the trustee of its client’s money, should have obtained an ‘undertaking’ from the sellers solicitors that it had taken all reasonable steps to establish its clients identity.

This differs from the cause of action in the similar case of P&P Property Ltd v Owen White & Catlin LLP & Anor, where the buyer failed in claims for breach of warranty of authority and negligence against its solicitors and estate agent.

The decision must be viewed as extremely worrying for conveyancers and, though it is likely to be appealed, it has clearly left practitioners in a state of flux.

Until clarity arrives what should a prudent conveyancer do?

Acting for the seller

To begin with, it will be important to always check the title documentation carefully and to identify transactions where the seller is shown to be living at a different address than the property address.  Practitioners should also be alert to situations where the correspondence address for the seller is different from that shown on the title document for the property or the seller’s correspondence address.

I would suggest these transactions once identified should be brought to the attention of the compliance officer/partner/director and marked as a high risk transaction.

I also suggest an added level of client ID checking is undertaken.  There is a need to make sure the client can show that he or she is connected to the ownership of the property.  In our office we now ask in these situations for the client to provide us with details of the solicitors who acted on the purchase of the property and to provide documentation relating to the instruction of those solicitors if available.   Our reasoning is that an imposter is unlikely to know the identity of the solicitors who acted.  It will also be open to us to contact those solicitors and make appropriate inquiries if necessary.

If we were asked for an ‘undertaking’ or a warranty as to true identity of a client, the best advise will always be to say ‘no’ irrespective of  the Mishcon de Reya decision.  All that one should say, is that we have undertaken those checks which are required of us by legislation and professional regulation.  It is clearly down to those who set these rules and requirements to issue further guidance and all one can do in the meantime is to follow and abide by what is currently in place.

Acting for the buyer

As above, when checking title and identify, those cases which could present the potential for fraud should be brought to the attention of the compliance officer, partner or director.

You can always ask the sellers solicitors to warrant that the seller is the true owner of the property or to provide an ‘undertaking’, though as I say above, I expect the seller’s solicitor will not be minded to assist.

You could also ask in the additional enquires for evidence linking the seller to the property to be produced  - e.g. stamp duty return when the property was purchased or some other document only the true owner could produce.   I suspect the seller’s solicitors may argue that this is not an appropriate enquiry to raise and refuse to answer.

What happens if the seller is not prepared to play ball?

The buyer client should be informed of the risk and advised in very strong terms not to proceed with the transaction without first seeing evidence of this type.  If the client says notwithstanding this advice he or she still wishes to proceed then a written disclaimer should be sought from the client.

Conclusion

The judge in Mishcon de Reya decision is reported to have said that it was only fair for the claimant to make a recovery, as in his view, by finding in favour of the claimant this was the only ‘practical remedy’ in the light of the fact that the defendant had insurance.   This reminds me of the days of Lord Denning when decisions were based not on the law and good practice, but rather on the equity of the situation.    This is all well and good but its consequences are far reaching for the high street conveyancer and will surely leave a lot of us thinking is it really worth running and taking responsibility for all of these ever increasing risks when the fee we able to charge is often much less than that charged by the lender, the broker, the panel manager, and the estate agent. 

One simple solution to all of this uncertainty and exposure is to provide an alternative to the holding of client money.  Surely this decision cries out for serious consideration to be given to moving the management of client funds away from the conveyancer to a regulated and centralised third party. 

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 davidp@mjpconveyancing.com

Should clients play home or away when choosing a conveyancer?

The online revolution has changed almost every aspect of our lives and, finally, it is beginning to impact upon the rather reactionary world of conveyancing. With the rise of the online conveyancer, writes Will Clayton, New Business Advisor at MJP Conveyancing, there is now some much-needed competition and a greater degree of variety within the legal property market. This can only benefit you!

Many people, however, continue to work under the misconception that it is necessary to appoint a local solicitor to undertake your conveyancing; here, we look at the pros and cons of choosing a local or online conveyancer.

Do I need to meet my solicitor? 

For those who have not bought or sold a property in the last few years, it may come as a rather unnerving surprise to learn that you can buy or sell a house without ever meeting your solicitor. It really depends on the type of service you desire. Some people will like the reassurance that speaking with someone face-to-face can provide, but it does not necessarily mean you will have greater communication with your solicitor or greater access to your case. 

Good online companies will have multiple avenues of communication (email, online messaging and the old-fashioned telephone) to discuss your case with you and will not charge you for this service. Better case-management systems will also allow you to view and monitor progress as and when it happens – this can be particularly useful for those who work during the day and do not have the time or resources to organise multiple meetings with their solicitor. 

There are, of course, the dreaded faceless online companies, who are impossible to reach and who seem to have no idea who you are or show any awareness that you are in fact their client! A quick google search, however, will normally reveal how accessible your conveyancers are and how responsive they are to their clients’ needs based on their reviews. 

It can be very useful to be able to drop in to your local solicitor if documents need to be passed on urgently, but you will of course have to make an appointment in advance. 

Will I get a better service on the high street? 

Not necessarily. Without competition, high street solicitors have been able to charge higher legal fees without proper justification for it. In most cases, conveyancing should be a straightforward, quick process – that is not to say there are not cases where a transaction is more complex, but there is no reason why a higher fee should indicate a higher level of service. It is simply a different type of service. The extra you pay reflects the face-to-face time you will get with a local solicitor that would not be available to you when using an online company.

Conversely, there is an argument to be made that the online conveyancers can offer a more efficient service; firms that deploy technology to their advantage and have effective case-management systems can process work quicker. Everything from transferring documents to providing a report on a lease can be done much more efficiently online. More traditional firms, still dependent upon snail mail, can take much longer to process administrative tasks. 

There are, and always will be, firms that do not provide an adequate level of service (amongst both high street and online conveyancers alike) but, once again, basic research will save you from possible catastrophe. Websites like Solicitorsfromhelluk.com aim to expose bogus firms and those offering a terrible service, but do not rely on a single site or review when making a final judgement. 

Do my solicitors need to have knowledge of the local area?

Essentially, no. The information which solicitors rely on to provide legal advice is all obtainable online; everything from the risk of flooding to the planning history of property is digitized enabling solicitors to provide you a full report on a property without ever having to have visited the local area.

That is not to say, however, that local knowledge is not useful; local solicitors who have been operating in an area for their entire careers will of course carry with them vast experience and an in-depth knowledge of the particulars of the area. This may or may not benefit you especially, depending on the type of property; with some more distinct properties, that local expertise may come in very useful.

Conclusion

As discussed, there are benefits and drawbacks to both sides; the important distinction to make is not in terms of the quality of service on offer, but the type of service you will receive. 

If you want a more traditional, personalised service it may be better to use a local solicitor; if you are comfortable with technology and are looking for a cheaper and, often, more efficient service, try using a reputable online conveyancer. 

Ultimately, both local and online solicitors would benefit from learning from each other; increasingly, local solicitors will have to incorporate technology into their processes, just as online conveyancers should be looking to develop a more personal, communicative approach to the way they operate too. 

This is certainly the balance that MJP Conveyancing aim to strike in 2017, between a technology-driven, efficient service and one that retains the personal characteristics of a small, local firm.  MJP Conveyancing also offer their clients free and lifetime access to an online property log book which is used to store all of the information and documents generated within the course of the transaction.   

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 william.clayton@mjpconveyancing.com