Professional briefing - The Journal Online

Property Missives
“One size” is a
Despite the movement towards standard missives even having united
conveyancers in Edinburgh and Glasgow, Michael Smith argues that
they have their limitations and could work against clients’ interests
“Do not say, ‘Why were the old
days better than these?’ For it is
not wise to ask such questions”.
(Ecclesiastes, 7.10)
Having been conveying property
for over 30 years, I am at risk of
grumpy old conveyancer’s syndrome
(recognisable to trainees and
secretaries everywhere). In gentler
times, I had an article published in the
Journal, February 1993, 60, criticising
both the philosophy and the content
of the early attempts at standard
missives. Despite a rearguard action
by many experienced practitioners,
standard missives seem to be here to
stay. The latest version, the Combined
Standard Clauses (“CSC”), unites
Glasgow and Edinburgh practice, a
small miracle in itself.
There are some benefits to standard
missives, but I worry about specific
aspects of the CSC, and that the use
of standard missives generally will
lead to lazy conveyancing practice,
resulting in stress to clients and a
higher incidence of claims under the
Master Policy.
This article is not meant to be an
academic one. Rather its purpose is to
alert conveyancers to concerns
expressed widely by practising
solicitors, and to invite a discussion.
Hopefully that discussion might lead
to some changes in the content of
standard missives, and how they are
used. The issues are not black and
white, but rather a question of balance.
With due respect to those who drafted
and approved the CSC, and other
standard missives, I feel that the
balance is wrong in some areas.
Certainty v speed
These are mutually exclusive goals,
and I would submit that the CSC,
54 / theJournal December 09
and other standard missives, have
exchanged speed of conclusion of
the bargain, which might be termed
“uncertain certainty”, for genuine
certainty. A quickly concluded CSC
bargain will have numerous
suspensive clauses. The main ones
relate to alterations (clause 7), title
conditions (clause 15), the property
enquiry certificate (clause 19), and
the coal report (clause 20).
Clause 7, relating to alterations, is
a minefield for the unwary. In these
days of home reports, the alterations
noted by the surveyor are clear for all
to see at an early stage. With the
longer lead-in time to sales, the
selling solicitor should be ordering
up the titles at an early stage,
clarifying with the seller what
additional work has been done, and
checking all available documentation.
The seller’s solicitor should then
forward all documentation with his
qualified acceptance, so both sides
have full knowledge of any issues.
In addition to this general
observation, clause 7 is weak in
specific areas. As an example,
clause 7(a)(ii) requires the seller to
produce “an unqualified… Letter of
Comfort”. Virtually all letters of
comfort are qualified to some extent.
Far better, for certainty, that the letter
of comfort is available and exhibited.
At the very least the wording of clause
7(a)(ii) should refer to a letter of
comfort “in the standard form of the
relevant Local Authority at the time of
granting”. As a minor point, stamped
building warrant plans are very rare,
and there are copyright issues with
local authorities and architects.
In relation to title conditions, since
a copy land certificate may be
obtained immediately from Registers
Direct, it must surely be preferable to
exhibit this with a qualified
acceptance. Such exhibition would
fyi
Practice varies among
CML members as to
what alternatives to
NHBC documentation
are acceptable
cover not only the issues dealt with
in clause 15, but the extent of the
property would be specifically
referred to, with the purchaser
obliged to satisfy himself on that
extent. Acting for a seller, I recently
had a purchaser attempt to resile on
the basis of the extent of common
ground within the property title. I was
able to point to the qualified
acceptance, where I had enclosed the
land certificate, and incorporated a
provision indicating that acceptance
included satisfaction on extent. The
purchaser duly settled.
Clauses 19 and 20 have similar
elephant traps. The property and coal
reports can be exhibited almost at the
date of settlement, but the purchaser
then has 10 days to consider them, and
if there is a problem, the seller then
has six weeks to rectify the problem. In
theory, therefore, two months could
pass following the date of entry with
both sides unsure of whether there is a
bargain or not. In a chain situation,
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