Why conveyancing is not a simple business...

I went on a course last year called the PSC, for people aiming to qualify as solicitors.  My own background is that as a Legal Executive I decided to go further and complete additional examinations as well as the Law Society’s requirements and hope to enrol as a solicitor having now jumped through all the necessary hoops.  It is a less usual (although more and more popular way) of becoming a solicitor; many Legal Executives do not feel the need to do further qualifications.  As an instinctive student I quite enjoyed the additional learning.  Working in a legal practice means I am governed by the SRA (Solicitors’ Regulation Authority) Rules in any case so we are all in the same boat professionally.

So, I was on this course, and because it was run by a large City-style provider in London, I was blessed with the company of many young trainees working in-house at US banks and in commercial departments at magic circle firms.  Our first seminar was on the changing landscape in legal services and instantly one lovely young lady proclaimed “Oh I wouldn’t mind Tescos doing legal services for something easy, like conveyancing”.  Having spent the last ten years of my life mainly focussed on this area in my professional career and knowing exactly how challenging it can be, I simply referred her to the data on negligence claims and dabblers in property matters (who presumably take the same unenlightened view that it is “easy” law).

The general public are led to believe by various internet firms and home moving sites that conveyancing is a simple paper exercise which anyone could carry out, but as conveyancing lawyers do it every day and everyone uses one, you may as well do that.  This is so far from the truth.  Whilst the work is transactional, there are any number of pitfalls associated with this including the obvious (making sure your client is not committed to buying a new house without having sold the old one) and the less obvious, like ensuring the plans provided by the Land Registry do in fact reflect the whole of the land you are buying. 

The law around this is not just land law (think rights of way, payments to local churches, covenants against building on certain land) but contract law (how else would you buy something so important if there was not a contract) and the law of trusts, because all property is held on a trust of land.  The concepts of co-ownership and beneficial entitlement to property exercise all residential property lawyers in their daily grind (imagine a row over who put more deposit in later – did your conveyancer give you the correct advice on this?), as do having an understanding of what happens following death and divorce – as of course these circumstances are often the trigger for a house or piece of land being sold.  There is the further complication of landlord and tenant law – if you buy an investment property with a sitting tenant do you know if you could get him or her out of the property?  Not all tenancies are the same. What about the field next door?  Who owns the stream and is that a public footpath across the bottom of the garden or just a friendly neighbour walking his dog?

You see my point.  None of this is simple.  I haven’t even mentioned listed buildings, conservation areas and planning problems yet.  And our profession is being denigrated by those who think that as long as the person dealing with the file has a checklist in front of them, it will all be fine.  There is so much intelligence involved than that, and I for one, am fed up of hearing the expression “just a conveyancer”.  If it was that easy I’d be out of business.

Why you shouldn't write your own Will...

Many high street stationers like W H Smith are now offering “Write your own Will” kits for less than £10.  This seems, on the face of it, an absolute bargain for those people who know they should have made a will but have neither the time nor money, so they believe, to speak to a qualified practitioner with legal training.  Many of these kits seem very straightforward – you just fill in the blanks and away you go – but is it really that simple?

In deciding the future of your estate there are some fundamental points to consider: for example, did you know that if you leave a close family member out of your will that he or she may be able to claim on your estate after you have gone under current legislation?  Do you know who would be entitled to make a claim, and what kind of wording should be used in the will to indicate what your general wishes were and why?  This may not prevent a claim but it may give some indication to those left behind as to why the provisions of a will were drafted as they were and prevent confusion and potential animosity between family members.  Without taking into account the legislation protecting dependants and their claims on the estate, your will could be invalid despite having following the instructions on the document supplied.

Whilst the forms offered by stationers and widely available for use on the internet are, in most cases, originally drafted by a person with legal training, there is no advice given with the use of these “boilerplate” (or “one size fits all”) documents.  Therefore the implications of the gifts a person is making (or possibly not making in some cases) are not explained; nor are the tax implications or the consequences of making a Will which excludes a close family member.  More distressingly for those left behind, these mistakes can mean in fact not only are there unexpected financial consequences but in some cases that the “will” is not valid at all.  One of the key parts of the document is the attestation clause, i.e. the part that is signed and witnessed, and if this is not done correctly the will could not be proved as valid following the death of the testator (the person making the will).  Therefore the whole idea, which was not to die intestate (i.e. without a will), is made a mockery of  and the intestacy legislation kicks in.  This is a very strict regime which allows certain family members to inherit particular portions of an estate in order of priority.   For example, a mother who lives with her partner and her child who has not made a will would find all of her assets going to her parents – who may neither want nor need anything – whilst the child and partner are left without.  Live-in partners and stepchildren cannot inherit if a person dies intestate.

Occasionally, if a person dies without any remaining relatives, and no valid will, his estate will revert back to the Crown, despite the presence of a live in partner.  This means that all assets held by that person would revert to the government whilst the person with whom he or she had shared his life, potentially  for a number of years, would be left with nothing. 

There is a common misconception that “common law marriage” provides rights to unmarried couples in the way that the contract of marriage does to Mr and Mrs.  This is not the case and unmarried partners, particularly with children, should be careful not to complete DIY wills on the basis of general assumptions made by lay people.  Equally the introduction of civil partnerships has altered the position for same-sex couples – I was asked recently if a ceremony, but not a formal civil partnership, was enough – the answer is no.  If the paper contract does not exist then in law there is no spouse.

In addition to ensuring that the correct people inherit what you would like them to (difficult if you do not know the rules and do not have a lawyer to advise you on them at the initial stage), inheritance tax can be relatively complex and really does need discussion before you decide what to do.  There are a number of devices that can be utilised to minimise the risk of inheritance tax such as the method by which jointly owned property is owned, the creation of a separate nil rate band discretionary trust in your will, and lifetime gifts.  It is impossible to give these matters full care and attention by ticking boxes or filling in gaps on a basic document designed to work for every Tom, Dick and Harry.

Aside from the obvious danger that a DIY will not be valid for one of the reasons already stated (which in one recent case led the latter will to be held void, with a previously drafted will with very different provisions being held valid and thus disappointing the intended beneficiaries of the second in no small way), there are worrying aspects relating to fraud.  In 2007 a case was unearthed in which a daughter was found to have forged her mother’s signature on a DIY will which the daughter then attempted to prove as original after the mother’s death.  In this cause the daughter should have been entitled to £17,500 but tried to claim £64,000.  Fortunately her two siblings challenged the assertions she made and graphology (handwriting analysis) was used to determine that the mother had not in fact signed the will herself.

Contentious probate legislation is increasing as the laws protecting dependants have been used in a number of cases to establish significant claims against various estates;  with the increasing popularity of home-made or DIY wills, this is only likely to continue.  With all these potential problems, how much money would you really save by going to WH Smith?

PS If you decide you need a solicitor to write your Will, head over to Setfords website. for a bit more info. If you think you'd like to talk to someone who does more than just fill in a form, drop me a line here.

The Well-Trained Client

So often I want to thank a client.  For being "well-trained".  This sounds a bit patronising though, right?  It's a bit like a lady calling a man "house-trained" because he remembers to put the toilet seat down - particularly when the mother-in-law is coming to visit.  Well, I have to be honest, it is kind of the same.  It just makes life easier.


Do you ring your lawyer and wonder why he/she is on the phone to someone else? (Leave a message!  Please!  We promise to listen to our voicemails daily!  If not hourly!)  Do you return letters sent to you with the documents for signature?  Do you phone to say you are sending an email, and then ring to check it has been received?  Then this is for you:


1. Please please please return all paperwork as soon as you can, unless there is a problem or a query with it, in which case please ring or send an email but don't write a letter as this will hold things up whilst the Royal Mail do their bit (or not, as the case may be).  Please don't post back the letter we have sent you, as we have kept a copy on the file already, and it just confuses us.


2. Please do not think we do not care.  We do.  Even if it is only because we want to get paid.  But the bottom line is, if you have not had a phonecall for a day, or even two, it is most likely because there is nothing to tell you.  So please remember we are human beings and do actually want to progress your matter.  We don't like it if clients have to chase us so if we have something to tell them, we usually do that, as soon as humanly possible.


3. Following on from 2, please therefore TRUST US when we tell you we are doing our best.  There is the odd day we have a really serious headache and a lot of work on and we cannot be perfect, but generally speaking, the lawyer's world revolves around making the client happy and fixing their problems.  So if you haven't heard something before and aren't sure, just ask for a fuller explanation.  We do try not to bombard you with legalese, but that does not mean we cannot explain things further when you ask.  So if you are struggling with the trust thing, just ask away and hopefully you will feel better.


4. Bad news is bad news.  Often we are the poor chaps who have to give it to you.  It does not mean the bad news is our fault in any way, shape or form, or yours, but we are paid to act in your best interests which means telling you the truth even when you don't like it (e.g. "you are very unlikely to win this case if you sue").  We do not make up bad news because we are control freaks or want to charge you more.  It just happens and someone has to give it straight.


5. Our fees are not all spent on holidays in the Caribbean.  It costs quite a lot of money simply to keep returning your phonecalls, writing your letters, and make sure we comply with the panoply of regulation affecting us.  This is no bad thing, as regulation makes us do a proper job and be accountable.  The flip side is that if it was as cheap to write a Will using a firm of solicitors as it was with WH Smiths, our profession wouldn't really have any standing with the public.  A great deal of what we charge goes on looking after you, believe it or not. 


All of my clients, without exception, are well trained - listen to what I say, appreciate the advice, and return paperwork when nagged.  That's all I'm asking really.  Although if you are able to pay my bill too, I can see this developing into a special relationship of sorts...

Why every lawyer should be a school governor

I am often asked how and why I got involved in school governorship and exactly what it is about.  The answer is simple: I was a parent.  But having started from that point I have realised quite how tremendous the volunteer army in this country is and how proud I have been to become a part of it.  As a lawyer I come ready-equipped with some of the skills required to be an effective governor: an ability to sit through meetings, sift through the chat for the pertinent points, and help to guide strategy much as one would with a client or a business interest.  The difference?  I am not being paid, and therefore enjoy this in an entirely different way.  Those amongst us who really enjoy being a school governorship feel humbled and privileged to be able to affect these children's futures, and take everything we do in that context with the utmost of seriousness, being able to remember having been children ourselves.

In addition the role of a governor is that of "critical friend" - to scrutinise and still support the Head, the rest of the School and the Chair of the Governing Body to help deliver the best results possible for the children (the whole point of the exercise of course).  All kinds of lawyers, be they barristers, legal executives, solicitors or those working in house, are required to pick the holes in the "other side" and their arguments.  What better practise for scrutiny then, of statistics, policies and results, than to have been a lawyer. 

All governing bodies run in different ways, but examples of committees including premises (that's for the property lawyers), personnel (think employment and data protection) and curriculum (think compliance).  I have taken a turn at sitting on pretty much every type of committee now and would hope that I have had at least some small skill to bring to the table on every occasion.

Following my own experience, I was unsurprised to see that the bods at the Law Society have had a similar epiphany and in fact set up a scheme called Allies which aims to have a "lawyer in every school". (See http://www.lawsociety.org.uk/aboutlawsociety/corporateresponsibility/allies.page)  As I am not a member of the Law Society at present, I guess I should not be surprised not have heard of this sooner, but I wonder if they are doing enough to promote it?  It seems to me to be common sense to have, as schools become more and more like businesses (I'm not saying I agree with that politically in any way, mind), a lawyer and an accountant on board.  This is particularly worthwhile as the services delivered by local authorities are dwindling, being outsourced, and often being over-charged for. 

If you work in the law and have an interest in shaping the world of the future I would urge you to consider contacting your local authority, who will be able to discuss vacancies with you, or the School Governor's One Stop Shop, at http://www.sgoss.org.uk/ who recruit tirelessly for volunteers and place them in schools with vacancies.  You probably have a lot more to give than you think.

Conveyancing Quality Scheme picks up speed - will it work?

Well, it's been a busy month out and about reminding people who I am, what I do, and why they should recommend me to their clients, but finally the light is dawning and the market seems to be gently improving.  Of particular interest to me this month is the Law Society's new Conveyancing Quality Scheme (see here: http://www.lawsociety.org.uk/productsandservices/accreditation/conveyancingqualityscheme.page) which is causing quite a stir amongst property lawyers.  The idea is to further regulate conveyancing lawyers with a new kind of kitemark and in order to obtain this accreditation, firms are required to fill in enormously complicated forms, credit, fraud and CRB check anyone involved with the work, and promise to stick to a new code of client care (amongst other things).  Whilst well received by some organisations - for example the Conveyancing Association (see their press release here:

http://www.theconveyancingassociation.co.uk/pdfs/20101020%20Response%20to%20LS%20CQS.pdf) and some property practices (check out the view from Arc Property Solicitors here:

http://www.arcpropertysolicitors.com/blog/conveyancing-quality-scheme-conveyancing-kitemark/) there are also those (many of whom who prefer not to be quoted!) who have commented that this is just another administrative burden for them: they know how to do their jobs, they are SRA regulated in any case and there will always be the prudent many fighting to prevent damage being done by the negligent few.  Of particular concern to those of us in practice is the lack of formal statement by the Council of Mortgage Lenders confirming they will require practices to be members of the scheme to retain their panel membership (and thus be able to act for both purchaser and borrower in a property purchase) but the very potent rumour that they are likely to insist upon it eventually.  The difficulties encountered by small firms with panel membership are already pushing some to breaking point: how with this development affect them?

 

Despite the criticisms levelled at the new Scheme, with the support of all major lending institutions and insurers, it is likely to become well known in the coming year and in particular once the Law Society begin their public campaign, designed to reassure clients (as well as lenders who have expressed increasing concerns about rising property fraud in the last eighteen months) that higher standards are being enforced across the profession.  For a firm quoting the same cost in legal fees the difference in winning an instruction could, in the future, be the addition of this quality standard on their notepaper and website. Clients sometimes need all the reassurance they can get.

 

At the risk of sounding like an old duffer, I do think that any initiative that attempts to raise standards and weed out those firms providing a poor service and inadequate legal advice has got to be a good thing in principle.  Clients want to know that they can trust the advice they are being given, and that a reputable organisation (like the Law Society) is behind those professionals that they are dealing with.  Together with the new Legal Ombudsman, I would say this is more "power to the people".  If clients are not happy dealing with a firm not part of the Scheme - they won't have to - although somewhere along the line I suspect they will be made to cover the cost of this latest intervention into our practice standards.

 

 

New Year, New Beginning!

Well, it's that time again I guess...New Year, everyone wants a fresh start and all that.  Lucky for me, I have got one, having joined a new firm (I am new, not the firm...!) with a great team and tons of admin support, meaning I can spend time checking the law (yes we do that sometimes) and even seeing clients, instead of filling forms in and fielding accounts requests.  In fact I'm really looking forward to it.

The downside is of course, that if you do any work in Wills and probate, you will be aware (in fact you will be aware anyway) that this a kinda depressing time of the year in law - the elderly pass away during the colder snaps and after Christmas there is a statistically proven rise in divorce instructions to solicitors.  Whilst the cynics amongst us would see this as good for business, it's actually not very nice dealing with other people's heartache all day, even if it is what you are paid for.  It is, however, rewarding knowing you have helped someone through a rough time.

Onwards and upwards as they say!  The few estate agents I have had time to speak to so far this year have been pretty upbeat - people are putting their houses on the market in much higher numbers than November and December, which I put down to a combination of "new year enthusiasm" and the rotten end we had last year after all the spending cuts were announced.  It might be a tough year, but at least things are moving.