We at WBW along with many other firms are accredited by The Law Society with their Conveyancing Quality Scheme (also referred to as CQS).
This scheme is a recognised quality standard for residential conveyancing practices and shows that we:
- Have the expertise to deliver quality residential conveyancing advice.
- Use standardised processes to recognise and reduce risks.
- Educate clients about what to expect when paying us for conveyancing advice.
If we are to act for a lender too in a property transaction, then most mortgage lenders insist that we have such CQS accreditation in place.
Our accreditation is re-assessed annually with all of the conveyancers within the firm having to undertake and pass two mandatory courses each year to evidence continued competence.
As part of CQS all firms who are accredited agree to adopt The Law Society’s Conveyancing Protocol.
The Law Society’s Conveyancing Protocol
The Protocol is The Law Society’s preferred practice in residential conveyancing transactions and although designed for residential transactions it can be adapted for use in other types of land and property transfers however, the Protocol is not intended to be used in the sale and purchase of new build properties.
The Conveyancing Protocol is about ensuring that firms take a ‘common sense’ approach to the conveyancing process, agreeing certain service levels between the firms acting in a transaction in an effort to improve the service that we provide to our clients and also agreeing the timescales of each stage of the process. Where there is a chain however it is not always possible to keep withing such timescales that are set out.
The use of the Protocol is intended to ensure that all clients are treated fairly and are protected when dealing with high value assets and liabilities. Processes that are open and transparent help make the experience for our clients more efficient and reduce wasted time and costs.
The Protocol is basically a set of steps for us to follow when acting in a sale and/or purchase. Using the Protocol helps to:
- Standardise the conveyancing process.
- Make conveyancing more transparent and efficient.
- Improve the experience for solicitors, lenders and clients.
The Protocol is not a checklist and its steps are not exhaustive. We can complete the steps in a different order or simultaneously.
The Protocol assumes that:
- The buyers and seller both have mortgage lenders.
- And that we act for the lender as well as the client.
The Protocol can be used by both firms of Solicitors and those licenced by an appropriate professional body to undertake conveyancing.
When we use the Protocol we agree to use the most up to date versions of the following:
- The Standard Conditions of sale.
A contract incorporating the Law Society’s standard conditions of sale is a formal document designed to create legal rights and obligations and is intended primarily for use in residential conveyancing transactions although the standard conditions may be also used in other types of property sales. The aim of the Standard Conditions of Sale is to achieve a balance between the interests of a buyer and a seller.
- The Law Society’s code for completion by post.
This code is a process for us to follow when completing a property transfer that does not take place in person.
- The Law Society’s Protocol Forms
The Property Information Form (TA6)
The Fittings and Contents forms (TA10 and, if leasehold
The Leasehold Information Form (TA7)
The Property Information Form is for a seller to give the prospective buyer detailed information about a property. The Fittings and Contents form is for the seller to identify what is included and excluded from the sale price. The Leasehold Information Form is a form for a seller to complete where a property is leasehold and provides a buyer with information about the Leasehold arrangements.
- The Law Society’s Formulae for exchange of contracts.
The Formulae for exchanging contracts by telephone are a set of steps for conveyancers to follow when exchanging contracts. There are three different formulae, A, B and C.
If we are acting for a buyer and the seller’s solicitor has not provided the Protocol Forms then we can raise any additional enquiries that are relevant to and necessary for the transaction with the sellers solicitors.
The Protocol does however provide that we should only raise enquiries that are essential to help us to act in our client’s best interests and that we could be in breach of the protocol if we make:
- indiscriminate use of ‘standard’ additional enquiries.
- enquiries seeking the seller’s opinion rather than fact.
A seller’s solicitor does not have to deal with any enquiries that are in breach of the protocol and therefore we can only raise specific additional enquiries required to clarify issues arising out of the documents we receive which are relevant to the title, the existing or planned use, the nature or location of the property or which our clients have specifically requested. We must not therefore raise any enquiries about the state and condition of the property unless arising out of our search results, our client’s own enquiries, inspection or their surveyors report.
If acting on a sale of a property, we can refuse to answer any additional enquiries that are in breach of the protocol.
The Protocol: Our General obligations in a conveyancing transaction
The key to reducing stress in a transaction is to manage the client’s expectations; to do this we should be taking instructions on matters that could affect the chain (e.g. are parties separating, are they first time buyers, are their circumstances likely to change soon?).
It is important therefore for us to engage proactively with our clients when obtaining their initial instructions. Our clients may have been given unrealistic expectations by an estate agent or others about the conveyancing process or the timeframes and they may be unaware of the competing interests; and we engage with those expectations upfront and, where necessary, reset them.
There are many uncertainties in any conveyancing transaction, and we cannot be definitive at the beginning of the process. We need to manage our client’s expectations at the start and throughout a transaction. We as solicitors are bound by professional obligations to our clients throughout a transaction and as solicitors we are required to act in the best interests of each client and those obligations will take precedence over the Protocol.
The following obligations form part of our broader set of obligations and are undertaken as a matter of course.
- We must ensure that the transaction can proceed smoothly.
- We must ensure that all information is shared, subject to any confidentiality obligations that have not been waived.
- We must ensure that we have managed and covered timing and other expectations and linked transactions such as chains appropriately.
- We must consider any potential conflicts of interest during the whole transaction. These can arise when we are acting for more than one party: sellers, buyers and lenders.
- We must ensure that we comply with duties to lenders.
- We must act with courtesy and co-operate with third parties.
- We must respond promptly particularly in relation to despatch and receipt of money, exchange of contracts and completion.
- We must agree at an early stage how we will communicate with all others involved and respond promptly to communications.
- We must ensure that we always comply with regulatory and statutory requirements and SRA warnings.
- We must ensure that proper internal and external arrangements for file management have been communicated to our clients in relation to holiday and sickness absence.
- Where we are acting for a lender as well as for either the buyer or the seller, we need to be aware that the duties owed to the lender client are professional obligations and are subject to the lender client’s specific instructions.
- We must maintain high standards of courtesy and deal with others in a fair and honest manner.
- As mentioned above we must use the most up-to-date version of the Code for Completion by Post, contract, forms and formulae and accompanying guidance published by the Law Society or such approved equivalent publications as may be notified by the Law Society through periodic updates made on its website.
- We must ensure that we comply with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and client identification requirements.
- We must ensure that our publicity and costs information (including our website) meets the requirements of the SRA rules and codes of conduct and, ensure transparency of costs and expenses.
- We need to ensure that we give an accurate estimate to our clients at the time of engagement and adjustments thereafter if relevant.
- We must make a record of the advice given to seller, buyer and lender clients at all stages.
- We must have regard to the risk management requirements of our professional indemnity insurers.
- We must have a continuing awareness of potential cybersecurity issues
Once we have dealt with all of this then hopefully, we will be able to move towards exchange and completion for our clients.
There have been a lot of articles in the press recently about how long a conveyancing transaction takes but when you consider the steps that we as solicitors have to take when dealing with such transactions hopefully this article will explain why it can take some time.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.