by Matt Chalfont-Griffin

PARTNER

Whilst I am essentially a Commercial Property Lawyer, I undertake residential conveyancing for some of my own clients, but I also work with several colleagues here at Chubb Bulleid who specialise purely in residential conveyancing.  Over the last couple of years, it has become evident that the pandemic and other factors, such as working from home, have had a very significant impact on the speed at which conveyancing is taking.

Put aside the fact that there has been an unprecedented level of work in the residential conveyancing sector during the last two years because of the Stamp Duty holiday and people’s desire to relocate to nicer parts of the country, there are various parts of the conveyancing process which have been impacted.

A conveyancing process is not necessarily well known to a lot of people when they start the process.  Some people are old hands at buying and selling properties, but some people only do it occasionally and some people are doing it for the very first time.  Understanding the process is essential.

Stage 1 is viewing properties and agreeing a price via the estate agents.  When you are selling, choosing the right estate agent is essential and today, with so much done online, I must admit I am still an advocate of the independent local estate agent with the personal touch and local knowledge.

Once the estate agent has agreed the transaction, they will issue a Memorandum of Sale.  That goes to the solicitors acting for the seller and to the solicitor acting for the buyer.

Many people instruct the solicitors on sales well before a buyer is found but not everyone.   Dare I say that people have a view that solicitors are racking up fees in the background from the minute they open a file?!  Therefore, people are reluctant to instruct solicitors until they know they have a buyer, and I can totally understand that but if people instruct solicitors at an early stage then things like contracts, information forms and other paperwork required for a sale can be prepared.  If you are going to sell at some point then doing preparatory work is a really good idea and tends to save time and in my experience probably saves money in the long run because it minimises the number of questions raised by buyers and their solicitors.  It is important that a sellers’ solicitor reviews some of the paperwork that has been received by their clients to make sure there are no gaps in it.  The Property Information Form gives certain information but can, if reviewed prior to a sale proceeding, enable a sellers’ solicitor to flag up certain things where they might want their client to provide further information.  Planning, and Building Regulations paperwork, for example.

Nowadays both estate agents and solicitors all must go through identification and money laundering checks with sellers and buyers.  It is a strange duplication of the process but if you have local agents and local solicitors dealing with transactions then the reality is they can work together to make sure that both have got the information they need because it must be frustrating for a client where they are asked for the same information by an estate agent, their solicitor and often a mortgage lender if they are a purchaser.  Solicitors are not allowed to progress a transaction until they have dealt with things like identification but also we need to send clients our terms and conditions to set out fees, expenses and lots of other information which we are required under our professional rules to detail to our clients when we open a file.  We are not allowed to undertake any substantive work and incur costs for a client until such time as those boxes have been ticked.  That can often delay transactions and the number of times over the last couple of years where I have been chasing for progress on a transaction to be told by another solicitor that they are waiting for their client to return their terms and conditions signed I have lost count of.  It is very frustrating for all parties.  When acting for a purchaser you also need to obtain funds on account to enable searches to be requested.

All of that needs to happen before the solicitor can move forward on a transaction.  A buyers’ solicitor wants to get things moving and a sellers’ solicitor will want to send out draft contract, title and other documentation so that the buyers’ solicitor can start progressing things.

Even when searches are requested depending on where the property is being acquired is a bit of a lottery as to how long some of those searches will take.  Most searches are required and are best practice.  In many ways the most important search is a local authority search because it gives so much information about the property in terms of Planning, Building Regulations, highway information and lots more.  There are certainly two local authorities that I am aware of that are unable to do local searches because of cyberattacks.  None in this local area I am pleased to report.

Over the last two years because of the pandemic and because of working from home some local authorities have been unable to provide local search results quite at the speed that everyone would like.   Mendip District Council have done a fantastic job in keeping their searches coming through in a timely fashion.  I can imagine that at times last year, during the Stamp Duty Land Tax holiday that they were experiencing unprecedented levels of search requests and relentless workloads.  All credit to them for keeping everything moving forward.  On average searches take 2 to 3 weeks to all come back.

A good residential conveyancer will already have started reviewing paperwork that they have received to enable them to raise questions about the title and other information.  Waiting for all the searches to come back before doing that is simply just delaying the transaction potentially because everyone is waiting for progress.

Behind the scenes buyers are looking to get mortgages and that process has been a lot slower and a lot trickier over the last couple of years.

In addition, people are sensibly undertaking surveys and several surveyors able to do surveys seems to be getting smaller or they are all unbelievably busy because there have been weeks and weeks of delay in waiting for surveys to be done.  A good residential conveyancer will have sight of a clients’ survey and review it to check there is nothing in it that causes them concern that is not obvious from the paperwork they have seen.  If that survey does not arrive until 4 to 6 weeks into the transaction then that is holding things up.

That is not to say that criticism angled at a lot of conveyancers that they are poor at communication, is not fair in some respects.  In fact, communication with clients and estate agents is an essential part of the conveyancing process.  It limits the amount of stress for all concerned, and it limits the amount of chasing that everyone else has to do.  Any estate agent will tell you that the most frustrating thing dealing with lawyers is their inability to return telephone calls and respond to emails in a timely fashion.  We all like to know what is going on and the house moving process is a stressful one for individuals involved and understandably so.

Add into that mix that whenever a solicitor is acting for a buyer of a property and there is a mortgage involved, they effectively have two clients.  We are acting for the individual and in lots of ways that is where our absolute priority lies.  However, mortgage lenders have more power over solicitors than anyone realises.  They have a set of rules that we must comply with and sometimes we have to do things during transactions which are not popular with anyone because a mortgage lender insists upon it.  They have silly insurance policies and the like which is unpopular with everybody but those are our professional requirements which are set in stone by mortgage lenders.   The solicitor has no choice.

We must correspond with lenders to ask for their guidance on certain factors and that is certainly a process that does not happen quickly, and it is very frustrating for all parties when they are being told we are waiting for a mortgage lender to sign something off.

Last but by no means least of course is removals.  Removal companies have really been under pressure over the last 12 to 24 months, again down to volume.  Some people are just not being able to find a removal company and that impacts on the dates involved and delays exchange of contracts because you must have a fixed date to work towards.

All I say above is frustrating.  We can see the frustration and understand the frustration.  Some things are within our control and some things are completely outside of our control but we are in many ways the front line and probably the ones that get the bad press but there is an awful lot more to this process than meets the eye and an enormous amount of complexity to the process that a conveyancer dealing with a transaction must consider.  It is stressful for them just in the same way as it is for everyone else involved in the process.

There may be a simpler way and I know that lots of people rave about the Scottish system.  I am not convinced myself, but I am convinced that better communication between all parties in the process would make it smoother and would make it less stressful.  I am also convinced that keeping it local with local solicitors working with local estate agents helps massively because they have a relationship that will never be built with an online estate agent or a solicitors 500 miles away.  That is not to say they may not be fantastic but many times it is because they are cheap and sometimes you really do get what you pay for.