In October of this year I will have been in the legal profession for 41 years. What has saddened me most in all of that time is the apparently inadequate service given by some firms, not only in checking the title of subjects purchased for clients but also in the way in which they deal with title issues arising out of sales.
Over the years I have made myself very unpopular by casting up genuine title defects when acting in purchases. The irritation this causes the selling solicitor is often palpable, but if I have the choice between upsetting another solicitor or landing my client with a duff title I do not have to rack my brains or search my conscience for very long before deciding whose side I will be taking. If this causes consternation on the other side of the transaction that is not my problem. As they say, the man who never made a mistake never made anything at all, and I well know that awful sinking feeling when you realise you have made a serious mistake. I don’t see why other solicitors should be granted immunity from this when they have made a blunder in examining title.
Bruce Ritchie, then of the Law Society of Scotland, used to drum into us at risk management seminars: “Don’t make your client’s problem your problem.” I say: “Don’t make the seller’s problem the buyer’s problem.” I have contracted for a good and marketable title and that is exactly what I want at the end of the day, not something which is resting on crossed fingers.
Some real cases
The Society’s Practice Rules 2011 at clause 1.4.3 specify that “You must at all times do… your best for your client”. In the following two examples the selling solicitors seem to have lost sight of this rule.
Example 1. A flat was being purchased in a modern development. It occupied the fifth and sixth floors of a block, but the land certificate stated only “fifth floor”. The selling solicitor started off by saying that the upper floor was a mezzanine floor, but when that argument failed he accepted a provision in the missives that a disposition of the sixth floor by the original developer would be produced at entry.
At entry no such disposition was available, the excuse being that the solicitor was having difficulty in contacting the company in question. Ten minutes’ work on my part, in pre-internet days, produced the full names, home addresses, and home telephone numbers of the director and company secretary. This information was imparted to the other solicitor and I said in so many words: “Just get on with it.” He was obviously hoping that my client would be on the doorstep of the block at entry with his family and a vanload of furniture, forcing me into some sort of horrible compromise solution which would simply have prolonged the problem. A minimal amount of work on his part would have seen this transaction settled on the due date. The seller had seen a previous sale fall through and this just prolonged his anxiety.
Example 2. In another purchase of a modern flat, a title fault was spotted simply by comparing the schedule of particulars with the land certificate. There was no title for one of the rooms, a spiral staircase and the driveway between the garage and the street. The obvious solution was a disposition from the developer for the missing portions, but it took more than two months for the selling solicitors to produce a draft and a further two and a half months to produce a signed engrossment. My clients eventually got fed up and abandoned the purchase.
The real tragedy here is that it was a beautiful flat with an unusual and very appealing configuration.
Everybody lost in this case, solicitors and clients on both sides of the deal. Why did it take five and a half months to get a corrective disposition?
In the following example the selling solicitor could possibly have done more to correct a title defect.
Example 3. A house being sold had a title issue. As the seller was a trustee in bankruptcy looking for a quick and uncomplicated sale, a discount of £15,000 was offered for taking the title as it stood. I eventually managed to repair the title and the clients got a corresponding uplift of £15,000 on the value of their house. In sorting matters out I drew on my fragmentary knowledge of church history and railway history, ironically based on a church which no longer existed and a railway which had never existed at all. The selling solicitor could have done this work; in the event their client was the loser.
What about IT?
Examination of title is neither rocket science nor brain surgery. It is simply reading a title to see what it actually covers and then tying that to what exists on site.
E-conveyancing is all very well, but what computer program can do examination of title? Incidentally the advent of computers prompted me to work out my own case management system, but as an Aberdonian born and bred, the prospect of a fully computerised system costing thousands of pounds simply horrified me. My system, which works perfectly, is based on paper checklists both for purchases and sales, and style deeds on the computer backed up on DVDs kept outside of the office. The system cost absolutely nothing at all, and it is completely immune from cyberattack.
Outside the box
Occasionally the conveyancer has to go outside of the title deeds to comprehend the title.
Example 4. Normally a house plot has one frontage to the street or road. A plot I had to deal with had four frontages to three separate streets and a lane on one side. I found the explanation of this unusual configuration in a book about architecture which described the village in question. If other solicitors find title research particularly irksome, they will not be interested in looking for whatever extraneous sources of information might exist to help them to understand a title.
I have tried to understand the unco-operative attitude which some solicitors take when I confront them with an apparently duff title, but it is simply beyond my comprehension. They may be embarrassed at having made a blunder at the time of purchase, but they should be going flat out to sort it out once it has been identified.
Example 5. A hotel in a crofting county appeared to be built on part of a croft. The transaction was drifting perilously close to the entry date without any effective action being taken by the selling solicitors, and almost in desperation I commissioned counsel’s opinion from an acknowledged expert on crofting law, which agreed with my interpretation of the title. The selling solicitors then had no option but to buckle down and sort the situation out. It is anyone’s guess what it cost them to do this, as a full scale resumption through the Land Court was needed, but it was not my fault that they had to be forced to acknowledge the title fault. My duty was towards my clients and nobody else.
Kyle Peddie of Peddie Smith Maloco is quoted in an article at Journal, November 2002, 21 as saying that we should leave conveyancing to the paralegals because they “are better at it than we are”. He felt that the solicitor should focus on business development. If I am going to convert from a conveyancing solicitor to a sales representative then I will have to ask my employers to provide me with the appropriate car.
In industry, the process of replacing skilled workers with people who have gone through a truncated training process is known as dilution. This is all very well, but you still need the fully skilled worker for the absolutely critical parts of the process, otherwise the whole status of the trade is diminished.
To my way of thinking, the very core of a purchase transaction is the examination of title. If you get this wrong, the fact that you may have done all of the other purchasing procedures correctly is not going to count for very much. You do not need to be brilliantly intellectual to examine title; you just need a bit of gumption and the willingness to visit the property you are dealing with. In certain cases you also need the courage to incur your own client’s displeasure if you appear to be getting between them and a property on which they have set their heart, by raising a title issue which neither they nor the sellers nor the selling solicitors regard as having any validity at all.
Conveyancing is not purely a paper exercise, as we are not buying properties made out of paper. The properties are three-dimensional entities, and when you receive a set of title deeds to examine you cannot assume that they correctly describe or convey the real properties they relate to.
If a solicitor ignores these very basic principles he or she will just have to hope that the next solicitor to look at the deeds will also ignore them. If the next solicitor happens to be me then that will be a very forlorn hope indeed.
In this issue
- Family law: still scope for reform
- People's court
- The importance of lawyers in a democratic society
- Thy will be done
- Children's rights and physical punishment
- Pension sharing and professional negligence
- Reading for pleasure
- Opinion: Bruce Adamson
- Book reviews
- President's column
- People on the move
- 400 years – still innovating
- Litigation: a bill to settle
- Access to justice: the small print
- Benefits of devolution
- The changing role of the courts in our democracy
- Core values
- The will bank opportunity
- Deep and meaningful
- The fall and rise of interrogatories
- To act or not to act?
- Immigration issues: more red tape
- Taxman scores winner in Rangers contest
- EIA: the regimes change
- Scottish Solicitors' Discipline Tribunal
- Practitioners or salesmen?
- Where the buck stops
- Law reform roundup
- Cyber basics for lawyers
- Practice points from missives review
- Money laundering update: new regulations in force
- Courts raise the stakes
- May: the force be not with you
- Conference success
- SYLA: 2016-17 in focus
- Ask Ash