Conveyancing

Kevin Hollinrake Excerpts

Tuesday 7th June 2016 Westminster Hall

[Will Quince (Colchester) (Con)]

I beg to move,

That this House has considered the conveyancing process.

It is a pleasure to serve under your chairmanship, Mr Percy, and I thank the Minister for being present today to respond on behalf of the Government. I refer you to my entry in the Register of Members’ Financial Interests, because Spicerhaart estate agent kindly provides a regular donation in kind by printing my parliamentary “Reporting Back” publication. I was also a practising property solicitor, although I gave that up on election to this place.

As a nation, we have long held home ownership to be a valued tradition. This Government have done much to promote home ownership and to make it easier for people to get on to the property ladder. Once someone has saved a sufficient sum for a deposit, perhaps utilised a Government scheme such as Help to Buy, and found a house to purchase, however, the conveyancing process kicks in, and recent mortgage research from Which? suggests that seven in 10 people who have bought or sold a home have found it to be nerve-racking and the biggest source of stress apart from getting a divorce. Having a child, changing jobs and arranging care for an elderly relative are all said to be less stressful than getting involved in the property market.

Are we surprised by that? A person or couple have put in their offer and instructed a conveyancer. They pay a retainer to the conveyancer to cover the cost of searches, which is about £200; for a survey, which is between £200 and £600; and any fee due to their mortgage adviser. They also complete a load of paperwork, and then wait and wait until their conveyancer informs them that they are in a position to exchange contracts. If one gets to that point, the house is under contract and people can breathe a sigh of relief. To be clear, up to and until that point, either party may pull out of the transaction, and usually no costs are recoverable. But is that okay because such cases are rare? No. More than one in five property transactions fall through each year—around 200,000—and about £270 million is wasted annually on legal fees and surveys for failed house purchases.

As I mentioned, by way of background, I was a practising solicitor specialising in residential property, so I worked in this area of law and have first-hand experience of the frustration of the conveyancing process in England and Wales. I am not, however, a poacher turned gamekeeper, because although conveyancers are far from blame free, the issues that need addressing are largely with the system and the process. Conveyancers are often demonised, because they are the day-to-day contact with their clients and the venting point for frustration, but in many cases they are not responsible for the numerous obstacles that can arise as part of the house-buying or selling process.

At the end of last year, I was pleased to see that Her Majesty’s Treasury and the Department for Business, Innovation and Skills announced plans for a call for evidence to explore

“options to deliver better value and make the experience of buying a home more consumer-friendly.”

That is no easy task, but I am delighted that the Government are taking it up. Recognising the issue is the first step, although I fear that finding possible solutions will not be as easy.

I will touch on some of the obstacles and frustrations in the conveyancing process, with my observations. Residential conveyancing is covered by the doctrine of caveat emptor—let the buyer beware. The purchaser’s conveyancer is therefore responsible for checking the title and undertaking relevant searches and surveys. That leads to detailed inquiries and, despite the Law Society trying to curb them where they are general, they still represent a considerable administrative burden. The burden is also on the purchaser’s conveyancer to be satisfied on behalf of purchasers and, in most cases, their mortgage lender. There would therefore be considerable merit in clarifying the extent of a conveyancer’s obligation to the client and mortgage lender.

Gazumping is the practice of buyers outbidding those who have already had an offer accepted. The practice causes huge frustration and disappointment for buyers who think they have secured their dream home, only to find that they lose it in a heartbeat to someone with deeper pockets. It also means that those buyers, who lose out regularly, end up paying for abortive legal costs, mortgage consultant fees and survey fees, which can run into thousands of pounds, adding insult to injury. Gazumping accounts for 21% of collapsed sales, while only 15% are because the buyer pulls out at the last minute. The answer could be a financial commitment pre-contract, which would be forfeit should the seller, without warning, raise the price or pull out of the sale.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

I congratulate my hon. Friend on securing this important debate. The last time a Government looked at gazumping was under Labour, which set out to tackle it, but actually tackled a completely different problem and introduced the ill-fated home information pack. Does he agree that any proposal to change legislation should involve the industry, including estate agents—I refer the House to my entry in the Register of Members’ Financial Interests—and the legal profession, to ensure that any changes are beneficial to the process?

[Will Quince]

I thank my hon. Friend for his intervention, because he is right: any change that the Government make has to be in association and after consultation with the industry, which is estate agents, solicitors, licensed conveyancers and surveyors—everyone involved. If we do not take them with us, any change will simply not work.

Long chains are commonplace in the conveyancing process. They can cause considerable delays to buying and selling. Although chains can be and do get broken, it is not easy, and action such as encouraging short-term lets could provide an answer. There is no question in my mind but that the simplification and standardisation of the mortgage application process would be a good first measure to consider, potentially including an industry standard of instructions and documents for the conveyancers to deal with. I recall the minefield that, in practice, is the Council of Mortgage Lenders handbook, with parts 1, 2 and 3, and all lenders having differing requirements. Reducing or standardising that handbook would lead to a reduction in the work that a conveyancer needs to do, therefore considerably speeding up the process.

There is a strong argument for deciding on agreed protocols and procedures in the conveyancing process. I recall that, in practice, it was only when a sale was agreed, conveyancers instructed and a retainer paid that property information protocol forms would be sent out to clients. Those forms are far from simple and take several hours, if not days, to complete, which means at least a week of delay before they are returned to the conveyancer to be sent on to the purchaser’s conveyancer. Comprehensive and standardised questionnaires would create consistency, and enable those selling a property to complete the forms when the property is originally put on the market.

Furthermore, I argue that estate agents have a part to play. They could be obliged to obtain basic information when a property is first marketed, and they could provide more detailed standardised property questionnaires from the conveyancer for the seller to complete while a buyer is being sought for the property. That might shave at least a week off the conveyancing process.

To remain on estate agents, several pieces of legislation affect them, in particular the Estate Agents Act 1979 and the Property Misdescriptions Act 1991. However, things have clearly moved on since then, and I suggest that we might need to review the existing legislation to make it fit for purpose. If, for example, estate agents were licensed—a potential option—the other regulated professionals, such as surveyors and solicitors, would have more confidence in relying on them to manage their part of the conveyancing process.

Currently, landlords and managing agents charge for information about leasehold properties and, in my experience, it often took weeks to receive the information. That causes considerable delays, especially when there is a chain of leasehold properties, which in our great capital city is commonplace. Regulation of the sector dealing with leasehold properties could be the answer, including, for example, minimum response times and a centrally held database of management packs, particularly for large blocks.

Finally, I will reserve some of my fire for my former profession. The move towards factory conveyancing with ridiculously low fees is not only leading to delays, but potentially costing clients. As fees fall, the margins fall and firms need to take on more and more work to remain profitable. That means that many conveyancers are reactive instead of proactive not out of choice but out of necessity. It is the client who then suffers as conveyancers cannot meet their rightly high expectations. Trade bodies have tried to address that by introducing specialist conveyancing credentials such as the kitemark. They have played some part in driving consumer choice, but ultimately—this is my experience and I think the industry would support me in this—the vast majority of clients are primarily motivated by the fee instead of the credentials of the conveyancer. That often leads to lots of complaints being made retrospectively—“I wish I’d used another firm. I wish I’d looked into it.”