Conveyancing is not a process that can be viewed in isolation

Conveyancing is not a process that can be viewed in isolation

I hope to show in the discussion below that residential conveyancing is not a process that can be viewed in isolation.

I am a Solicitor who has been qualified for nearly 32 years and who has always worked in a multi-disciplinary High Street practice. I now mainly deal with Conveyancing and Wills and Probate but throughout my career have worked in such diverse areas as crime, personal injury, commercial, family, Trusts of Land cases and housing.

I believe that to properly assist my Southampton clients with their house sales and purchases, and my main Conveyancer, it is important that I have such a varied legal knowledge. I was therefore concerned to see that the legal press has been reporting lately that the Conveyancing Association, the Council for Licensed Conveyancers and others are basically stating issues such as online reviews ‘help drive people out of the industry that do not do conveyancing as a specialism‘ .

This is not the first time that is has been alleged that only firms that specialise in conveyancing should act on buying and selling cases. I completely disagree with this assertion and believe it is important for clients to be aware that there are many issues to be considered in the process.

As one of the commentators on this article in the Gazette stated: “conveyancing impacts: employment, trusts, family law, wills/probate, commercial- corporate/company, agricultural, bankruptcy, Court of Protection.”

I also completely disagree with the premise that “conveyancing is mostly an administrative task and a phone; the post and a computer is all that’s needed.
There is no reason to ever meet with your solicitor during a typical sale or purchase. Because of this there is no need to limit yourself to your pool of local solicitors.”

We, and I know many other High Street Solicitors, pride ourselves on offering a personal service where we meet the client and ensure they fully understand what is likely to be one of the most expensive transactions of their lives.

There are a number of issues where I believe a wider knowledge is important, but I will highlight just a few.

1. Wills

I had a client where I prepared a Will, the property was in her sole name and she wanted to give her husband (who was not the Father of her children) a life interest in the property then leave it to the children. After her death some years later, I ascertained she had, as part of a re-mortgage where another firm acted, later transferred the property into the joint names of herself and her husband, with no declaration as to how the separate shares were to be held, making the Will incorrect. We have now had to enter into a Deed of Variation and fortunately all affected parties have agreed to this, which may not have been the case.

I do not know whether she was asked if she had made a Will or any form of provision, especially as the property was in her sole name but her husband has informed me they were never advised to review Wills or check whether this transfer would affect the Will.

2. Joint ownership

The issue of joint ownership could be the subject of a thesis on its own, but this is a very important issue that needs careful advice and consideration. In dealing with trust of land cohabitee claims in court I have seen on many occasions where a party has put more money in than the other, but the deeds are owned as joint tenants. This has been held by the Courts to be deemed to be owned equally and there is little the party who contributed more (or often their parents) can do to reflect this later. This shows conveyancing is not just an administrative task as a proper decision must be made by the parties after receiving the appropriate advice which could have a huge impact in the future.

It is not also widely known that, even if the property is owned as joint tenants, if one party dies and has a dependent child who claims against the estate the joint tenancy can be severed so the property can be used to provide for that child. This might be completely contrary to the intentions of the parties and other arrangements such as taking out a life insurance policy should be considered.

If a property is transferred into joint names this could have many consequences, such as it could be relevant if the person dies within 7 years and there is Inheritance tax (IHT) to pay on the estate. If the transferring party still lives, there is this a reservation of benefit and IHT is always due? The transfer itself may attract IHT now if the person’ assets are large, let alone stamp duty on any assumption of a mortgage debt plus capital gains tax implications, if the property was not their main residence.

3. Court of Protection

A colleague in another High Street firm has had to involve the Court of Protection in a sale. The owner has left the property by her Will to one person, but this now needs to be sold for care home fees so that beneficiary may then not receive anything as that was the only legacy she was to receive. He needs the Court’s permission for the sale as the owner no longer has capacity but also to amend her Will, so the beneficiary will obtain something under the Will.

4. Divorce sales

We often act for sales where the clients are in the middle of a divorce or selling pursuant to a Court Order. Often the parties have not agreed how to divide the assets and we have to ensure an agreement is reached or the funds are held on deposit until they are, then check any payment out is in accordance with the agreement or Order. I appreciate Conveyancers are used to these types of sales but it is important to have some knowledge of the divorce process, so the precise terms are carried out.

These are just an illustration as to the issues that can arise in a conveyancing transaction. If conveyancers in a mixed practice firm are unsure about a related matter there is usually someone else they can ask for advice. The Head of the Licensed Conveyancers stated “licensed conveyancers are ‘specialist property lawyers – dabblers by and large are not’. . I totally refute that assertion, we are normally all firms that have passed The Law Society Conveyancing Quality Scheme for many years and I always ensure we keep up to date and immediately cascade any new cases and changes in the law to my staff and ensure our procedures are amended accordingly.

5. Care home issues

We have a case where the children are selling their Mother’s home to fund care home fees and had been told by Social Services she would not receive help as she had her own house and savings. We have recommended they look into the issue of Continuing Healthcare funded by the NHS, it might not be necessary to sell the home at all.

There are several other issues such as contributions made in cases where one party has gone bankrupt that can be considered.

I hope this shows the High Street Solicitor, who has undertaken a broad breadth of training, will still survive to be able to properly serve and advise clients in the future.

Wendy Hewstone
Managing Partner
Access Law

July 2018

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