When the other party is not represented by a conveyancing solicitor, precautions have to be undertaken by solicitors to ensure that conveyancing process takes place smoothly and without a glitch.
Licensed Conveyancers
Licensed conveyancers are those who are bound by the guidelines set by the Council for Licensed Conveyancers. These guidelines are related to the conduct, discipline, insurance, etc. and are the same that bind solicitors. Thus, conveyancing solicitors can deal with licensed conveyancers as if they were dealing with a fellow solicitor.
Dealing with Unqualified Persons
Activities such as preparing a contract, transfer, or charge for the purpose of Land Registration should not be done by an unqualified person under the Legal Services Act 2007. At the beginning of the transaction that involves an unqualified person, the conveyancing solicitor should write to the unqualified person seeking evidence that no offence shall be committed.
Undertakings from unqualified people should not be accepted as there is no system to enforce them. When a seller represented by an unqualified person has a mortgage to be discharged, the buyer’s solicitor should ensure that a DS1 form is signed, instead of an undertaking for the discharge.
Acting for the Lender
A conveyancing solicitor acting for the lender may sometimes deal with a borrower represented by an unqualified person. In such a circumstance, he is not obligated to help the unqualified person or undertake work that a buyer’s solicitor would have to carry out. However, it is important that he protects his client’s interest and should therefore, check the title of the property. The advance cheque should be made in the name of the solicitor, a licensed conveyancer or a person authorised by the borrower to receive the money.
The Buyer or Seller is not represented at all
The conveyancing solicitor is required to act in the best interest of his clients and not take advantage of the situation either in a professional or personal capacity. When two outcomes mentioned in the Code of Conduct come in conflict with one another, the one that serves the best interest of all is the one that takes precedence over the other. For instance, when a solicitor dealing with an unrepresented buyer is provided a badly drafted document or contract, he can only advise the other person to seek legal advice, but cannot take advantage of the lack of legal knowledge. He should be very careful so as to not create a contract bound relationship with the opponent.
When a transaction is valued at more than £5,000 and one of the parties is not represented by a conveyancing solicitor or an authorised person, the law requires that the solicitor make application and provide details of the unrepresented person’s identity. This is done to discourage money laundering and other fraud.
Photo courtesy: Rhys Asplundh
