I recently came across a consumer comment expressing frustration at the length and complexity of UK conveyancing and raising the question whether involvement of a solicitor or conveyancer is vital.
Could the UK follow the example set by the USA where realtors, the estate agents, have the right to take on the role of a property lawyer?
I have little experience with the workings of the conveyancing process across the pond but my immediate thought was ‘Absolutely not!’.
Of course you would expect me to take this standpoint but as a lawyer with some 28 years of residential conveyancing experience, being fully appreciative of the central role played by estate agents in property transactions, I firmly believe that it would not be possible for the UK agents to ‘do it all’.
The United States is known for the majority of its properties, depending on state, being freehold. There are of course exceptions and every state has its own set of real estate laws.
However, as a whole it is recognised that the country has a very straightforward manner in which it differentiates between ownership types. You are either an owner or not.
Hence, in certain states of the USA, depending on local legal requirements and historical practices, realtors can sell homes without the need to involve the legal expertise of a solicitor.
It is reported that often this would not require much more than ‘filling in the blanks’ when it comes to a contract as the transactions are standardised.
This could not be further from the way in which the UK property market operates. In this country, it is essential that full due diligence is undertaken by someone with the relevant and appropriate experience and qualifications.
When checking and analysing property titles and especially when dealing with leasehold properties in certain areas of the UK, such as London and other major cities, we come across highly complex titles.
These could include houses which have been converted to flats and can only be interpreted or understood by a legal expert. Yes, it is possible to take out indemnity insurance to address many defects in a property but it goes nowhere near to addressing all the issues which can arise.
Lenders in the UK are already adopting a very cautious stance and insist upon professional legal representation in any residential property transactions. At present, most lawyers act for both their client and the lender but should a scheme similar to that used in the USA be adopted, with clients being represented by estate agents, lenders would need to seek their own professional representation with the costs being imposed upon the client.
This would add another financial burden on the transaction and could lead to the failure of a potential sale.
The complex ownership models in use in the UK make it impossible for anyone without the right expertise and skillset to be able to ensure their clients’ best interests are protected.
There is no evidence to prove that a change to an American-style conveyancing process would help speed up a sale, regardless of the venue where the work is taking place, the hurdles of completing on numerous complex leasehold and alternative ownership model transactions remain the same.
*Linda Kirk is Conveyancing Partner at national law firm Stephensons