Professional briefing - The Journal Online

dodgy fit
that could be a disaster. Again, in these
email days, why not exhibit the reports
with the qualified acceptance? An
additional benefit is that early
knowledge of problems will allow
tidy-up work to be done long before
an offer is even received.
Conclusion: a bargain with few, if
any, suspensive conditions, taking
slightly longer to conclude, is far
preferable to a fast, standard missive,
bargain, with loose time limits and
numerous “outs” for a reluctant
purchaser. What is the rush?
Purchasers’ solicitors are taking
longer and longer to conclude a
bargain anyway.
Style v substance
At seminars on the CSC, their
wonders were extolled. I think we
have all bought good “stuff” which
lies, dust-sprinkled, in the garage,
because we do not have the expertise
to use it. Any missive is only as good
as the person using it. The conclusion
of truly mutually-agreed missives is
not a question of having the “best”
missive (although that helps), but
being able to understand the various
clauses, what they can do, and what
they can’t do. Classically, the purpose
of a good offer is to extract
information from the seller.
The CSC also do not avoid the
need for the conveyancer to go
through the terms of the bargain in
detail with the client, explaining as
required. I have heard it stated that all
we need to do is send the client, or
refer them to, a copy of the CSC, and
possibly the client guide to the CSC.
If we ask the client to come back to us
with any questions, and they don’t,
then “we are in the clear”.
In addition to being very
dubious law, I think this is asking for
misunderstanding and trouble. There
is no substitute for a knowledgeable,
experienced conveyancer going over
missives in detail with a client. In that
exchange of information, reflected in
the substance of the subsequent formal
letter, a conveyancer earns his fee.
I see a drift towards missives being
concluded by less well qualified staff,
part of the general process of making
www.lawscotjobs.co.uk
The CSC also
do not avoid
the need
for the
conveyancer
to go through
the terms of
the bargain in
detail with
the client,
explaining
as required
law a “commodity”, to be packaged
up and sold to the lowest bidder. We
do our profession a huge disservice by
accepting this drift. It may be a valid
response to competition and lower
profits, but then the profession will
polarise into volume and niche
practitioners. How will the Society
equitably regulate those respective
interests? Should my niche practice
continue to share the professional
indemnity risk of the volume
conveyancer, as happens now?
General points are always clearer
when specific examples are given.
So, to give a specific example of style
versus substance, I refer to clause 14
of the CSC, “New Home Warranty
Schemes”. This looks good on the
surface, and flexible. It refers to the
provision of NHBC documentation,
“or such equivalent new home
warranty documentation as provided
by any alternative warranty provider
as approved by and acceptable to the
Council of Mortgage Lenders”. The
problem comes when one reads the
actual provisions of the CML
Handbook in relation to such
alternative warranties. The handbook
contains the different requirements of
the various lenders. Some lenders will
approve some alternative warranty
providers, but not others. Some
providers are acceptable to lenders if
their warranty is “unconditional”, but
not otherwise. It is not a major point,
but one day a purchaser’s lender will
not accept an alternative warranty,
when it may be acceptable to another
lender. Quid iuris?
Conclusion: unless the terms of
standard missives are fully understood
and intelligently applied to the
particular circumstances of client and
property, the risk is that more errors will
arise. This will result in a higher claims
incidence, and a general lowering of
standards in the profession.
Clients’ interests
v solicitors’ interests
There is a tension in conveyancing
between the adversarial and the
consensual, and there always will be.
The philosophy underpinning
standard missives is that of the
reasonable selling solicitor and the
reasonable purchasing solicitor, and
the bargain they might come to over
tea and crumpets. The problem is
that our clients may not want us to
be reasonable.
Our clients may not be reasonable
people. They may have a questionable
title, may quietly have removed a wall,
or may have been fighting with their
neighbours for years. If we all use the
same missives, any departure from the
norm will be obvious. Of course we all
have professional obligations to one
another, but these are limited, and our
prime obligation is to act in the best
interests of our clients. By advocating a
standard form of missives, are we
potentially putting our own interests
above those of our clients?
I think we also have to be clear
whether we are members of a
profession, or just in business to
maximise our profit levels. Frequently,
at seminars, I hear clients spoken of as
if they are the enemy. We are to put
our defences in first, crafting our fivepage
terms of engagement letters to
reduce risk practically to zero by
putting our clients on notice of their
responsibilities (high) and ours
(minimal).
Of course there are valid reasons for
making mutual responsibilities clear.
However, in my opinion, standard
missives are, like terms of engagement
letters, seen as part of our defence,
rather than part of our service to our
clients. The argument is this: if we are
all using the same missive, we can’t be
negligent. So the avoidance of
negligence becomes the prime
concern, along with ease of conclusion
of bargains. We gradually slide from
being professionals to businessmen.
Magic words
Buying and selling property cannot
be reduced to a formula. Standard
missives have the potential for
making us believe there is such a
formula, and by using that formula
(“magic words”), we somehow do the
work without effort and intelligence.
Without care, we will devalue our
professional expertise, and fail our
clients. I am gratified to see many
independently-minded solicitors still
using their own styles of offer. Some
of the offers are 52 clauses long, and
those solicitors ought to be charged a
fee by the selling solicitor for the extra
reading involved. Some of the offers
have been distilled to 13 clauses, and
are the most dangerous.
Michael Smith is principal of Mike
Smith & Co, Solicitors, Lenzie
December 09 theJournal / 55