Home Buying Guide: Article One – ‘A professional conveyancer is an absolute essential’’

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'A professional conveyancer is an absolute essential’

Are you buying a home for the first time? No doubt you are feeling incredibly excited yet also naturally slightly anxious about the technical details within the overall process. Buying a home can be a lengthy process from start to finish and involves legal requirements.

Whilst it is possible to carry out the legal side yourself, we suggest that you leave this important part to someone who is qualified and used to completing it, plus a mortgage lender will require you to use a professional regardless. You are buying a new home so why not enjoy the fun part of looking for the property and leave the legal details to someone else. This guide will explain why we believe a professional conveyancer is essential to ensuring a safe and smooth journey to completing the purchase of your new home.

What is a conveyancer

Conveyancing is the term for the legal transfer of the property between the seller to you as the buyer.[1] A conveyancer is a person who looks after this for you when you buy your home.[2] For example, the conveyancer will:

  • provide an explanation of the what is involved in the home buying process[3]
  • research any issues concerning the property for both you and your mortgage lender[4]
  • arrange the details involved in the contract which you will sign with the seller to legally bind you to the property[5]
  • complete the financial aspects involved such as the transfer of funds, preparing a tax return, assisting in stamp duty and Land Tax payments to HMRC[6]

When you select your conveyancer, you can choose either a solicitor which offers the service or a licensed conveyancer. Whilst it used to be advisable to choose the former over the latter this is no longer the case.[7] Both are legally qualified to carry out the same role[8], will go about this in much the same way[9] and neither has higher standards of behaviour than the other.[10] The notable difference between the two is who they are regulated by.[11] A solicitor offering a conveyancing service is licensed by the Solicitors Regulation Authority (SRA) and a licensed conveyancer is regulated by the Council for Licensed Conveyancers (CLC).[12] Both a solicitor and a licensed conveyancer should act in your best interests as the buyer of the property.

Why we suggest you avoid the DIY approach

Whilst there is no legal requirement to use a professional conveyancer when buying your new home, we would like to draw your attention to the possible consequences of doing so. The legal process of purchasing a property is governed by legislation which as is often the case is not helpfully worded in plain English and not what one would expect a person with little legal knowledge or experience to digest easily. For example, here are just a selection of legal issues you as a non-legal professional may not be aware of which a professional conveyancer would be:

  • Should you require specific information on the property you are intending to purchase which the seller or other parties do not already have to hand, you as the buyer will have to pay to obtain that information in terms of any expenses involved.[13] These could include, for example, deeds and wills.[14] A professional conveyancer is able to assess the necessity of acquiring such information, therefore, deciding whether it is absolutely necessary for the cost involved.
  • There are instances where the seller of the property you are buying can keep certain documents about the title to the property when selling to you.[15] We would not expect the average person without knowledge of property law to know what these are but a professional conveyancer will do.
  • What if the home you are buying is damaged in some way? This should be stipulated in the contract which the professional conveyancer would usually be handling. There are rules regarding the money payable under any insurance the seller may have had pertaining to after the contract date of sale regarding such damage.[16] A professional conveyancer should be aware of these rules and ensure that these are adhered to by the seller for your sake when purchasing the property.

Arguably, there is, therefore, a need to have a professional conveyancer in place to handle the legal transfer of buying a home unless you are very knowledgeable in the area of property law and able to fully understand it.

the-cost-of-a-conveyancerThe cost of a conveyancer

Like many important things in life, a conveyancer does of course cost. So, ensure that when budgeting to buy your new home, you have accounted for this. It is a cost worth pursuing because if you do get things wrong on the legal side it is likely the costs involved in putting them right or in picking up the pieces will amount to significantly more than the cost of using a professional conveyance.

So, what is involved in the cost?

Typically, you will be paying:

  • A basic fee for the conveyancer for their professional time[17]
  • Cost of disbursements (standard fees such as stamp duty plus any additional searches required specific to your property) which the conveyancer will pay on your behalf[18]
  • An initial upfront search deposit. Note, that this is simply a deposit for the above costs and not in addition to your overall bill[19]

The costs will be determined by factors such as:

  • The professional you chose as like most chargeable services; fees will vary considerably.[20] Some charge based on the value of the property in which case the latter will also affect costs.[21]
  • Whether the property is leasehold and whether you’re using a mortgage lender. Both incur an additional cost in your conveyancing fee.[22]
  • The cost of the disbursements which can be dependent on the area the property is located in.[23]
  • Whether indemnity insurance is required as a protection for the seller due to paperwork being missing[24]

Arguably value for your money

Whilst we have explained that the role of a conveyancer is to look after the legal conveyance of the land you are purchasing, the role they play in terms of looking after you in this regard is fundamental and taken very seriously, therefore, we believe money well spent.

If a professional conveyancer does not look after your interests they will be held accountable and can be so in instances even if the mistake may have been primarily due to the seller and her parties.[25] Also, if a buyer believes that her conveyancer has not adhered to the contract she has with her by failing to advise of any issues regarding the property she may take legal action against her.[26] In addition, and separate to this, the relevant regulatory body for the professional conveyancer may investigate any complaint in terms of whether or not the service the buyer received was adequately professional or not and can conclude that it was not even where a court has dismissed the complaint.[27] The Council of Licensed Conveyancers can disqualify a conveyancer on the basis of misconduct where it is considered the conveyancer has acted irresponsibly and untrustworthily.[28] In addition, a conveyancer may be required to a fine as a result of this.[29]

Summary

The services provided to the buyer by a professional conveyancer are, therefore, robust and under scrutiny in order to protect you as a buyer. Buying a home is a huge commitment which comes at a heavy cost, so a transaction which you want to carry out correctly. In order to so the legal side of this must be complied with and carried out seamlessly to protect you as the buyer. We argue that the sacrifice of an extra budget to cover the cost of a professional conveyancer is negligible in the huge scheme of the purchase yet fundamentally significant to achieving a successful purchase.

Bibliography

[1] The Law Society, ‘Buying a home’ < https://www.lawsociety.org.uk/for-the-public/common-legal-issues/buying-a-home/> accessed 5th July 2019

[2] The Law Society, ‘Buying a home’ < https://www.lawsociety.org.uk/for-the-public/common-legal-issues/buying-a-home/> accessed 5th July 2019

[3] The Law Society, ‘Buying a home’ < https://www.lawsociety.org.uk/for-the-public/common-legal-issues/buying-a-home/> accessed 5th July 2019

[4] The Law Society, ‘Buying a home’ < https://www.lawsociety.org.uk/for-the-public/common-legal-issues/buying-a-home/> accessed 5th July 2019

[5] The Law Society, ‘Buying a home’ < https://www.lawsociety.org.uk/for-the-public/common-legal-issues/buying-a-home/> accessed 5th July 2019

[6] The Law Society, ‘Buying a home’ < https://www.lawsociety.org.uk/for-the-public/common-legal-issues/buying-a-home/> accessed 5th July 2019

[7] Legal Services Act 2007, Schedule 21, section 81

[8] Legal Services Act 2007, Schedule 21, section 81

[9] Express Conveyancing, ‘Conveyancing Solicitors’ < https://express-conveyancing.co.uk/conveyancing-solicitors/> accessed 5th July 2019

[10] Holwell v Council of Licensed Conveyancers [1988] 1 WLUK 202 (Westlaw Case Digest)

[11] Express Conveyancing, ‘Conveyancing Solicitors’ < https://express-conveyancing.co.uk/conveyancing-solicitors/> accessed 5th July 2019

[12] Express Conveyancing, ‘Conveyancing Solicitors’ < https://express-conveyancing.co.uk/conveyancing-solicitors/> accessed 5th July 2019

[13] Law of Property Act 1925, section 45 sub-section 4

[14] Law of Property Act 1925, section 45 sub-section 4 (a)

[15] Law of Property Act 1925, section 45 sub-section 9

[16] Law of Property Act 1925, section 47

[17] Brazg G, ‘Essential guide: Conveyancing Everything you need to know (in plain English)’ (The Advisory, 2019 update) <https://www.theadvisory.co.uk/conveyancing/> accessed 5th July 2019

[18] Brazg G, ‘Essential guide: Conveyancing Everything you need to know (in plain English)’ (The Advisory, 2019 update) <https://www.theadvisory.co.uk/conveyancing/> accessed 5th July 2019

[19] Brazg G, ‘Essential guide: Conveyancing Everything you need to know (in plain English)’ (The Advisory, 2019 update) <https://www.theadvisory.co.uk/conveyancing/> accessed 5th July 2019

[20] Brazg G, ‘Essential guide: Conveyancing Everything you need to know (in plain English)’ (The Advisory, 2019 update) <https://www.theadvisory.co.uk/conveyancing/> accessed 5th July 2019

[21] Brazg G, ‘Essential guide: Conveyancing Everything you need to know (in plain English)’ (The Advisory, 2019 update) <https://www.theadvisory.co.uk/conveyancing/> accessed 5th July 2019

[22] Brazg G, ‘Essential guide: Conveyancing Everything you need to know (in plain English)’ (The Advisory, 2019 update) <https://www.theadvisory.co.uk/conveyancing/> accessed 5th July 2019

[23] Brazg G, ‘Essential guide: Conveyancing Everything you need to know (in plain English)’ (The Advisory, 2019 update) <https://www.theadvisory.co.uk/conveyancing/> accessed 5th July 2019

[24] Brazg G, ‘Essential guide: Conveyancing Everything you need to know (in plain English)’ (The Advisory, 2019 update) <https://www.theadvisory.co.uk/conveyancing/> accessed 5th July 2019

[25] Purrunsing v A Court & Co [2016] EWHC 789 (Ch) (Westlaw Case Digest)

[26] R. v Council for Licensed Conveyancers Ex p. Watson [1999] 12 WLUK 701 (Westlaw Case Digest)

[27] R. v Council for Licensed Conveyancers Ex p. Watson [1999] 12 WLUK 701 (Westlaw Case Digest)

[28] Holwell v Council of Licensed Conveyancers [1988] 1 WLUK 202 (Westlaw Case Digest)

[29] Legal Services Act 2007, Schedule 17, Section 13

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