For those wondering from the title whether they have a new conveyancing abbreviation to remember, TMI is a fairly recent one I’ve discovered from the youngsters: ‘Too Much Information’! Admittedly it’s a bit punchier than NTSELAT which many of you will have come across recently, being the National Trading Standards Estate and Letting Agency Team. Whilst I’m on this theme if you ever hear someone shouting frantically ‘does anyone know CPR!’ do not hand them a copy of the Consumer Protection from Unfair Trading Regulations 2008. It will not be helpful in those circumstances.
Clearly my starting point on the topic of upfront information is the concerns around the recently delayed implementation of the new 5th edition TA6 (I still prefer SPIF). For those quietly, or perhaps not so quietly, wondering why the TA6 5th edition now covers over 180 questions on its 32 pages, it’s largely because it incorporates guidance on providing material information from the NTSELAT, designed to help estate agents comply with those aforementioned CPRs.
The concept of obtaining upfront information at the marketing stage is logical. A buyer is more informed about the property therefore reducing the risk of uncovering something later on in the transaction that leads to them pulling out.
But TMI?
With the inclusion of material information forming part of the TA6 an additional burden seems to have shifted to the buyer’s conveyancer to sift through this mass of information on the form as part of their title check, and this could potentially lead to many additional ‘non- essential’ enquiries being raised by buyers and conveyancers. Will a conveyancer feel they have to raise an additional enquiry for a missed box on the council tax band question because the form is incomplete without it?
Whilst much of the material information won’t be required from a title check perspective, the TA6 encompasses a lot of information that does need to be checked. Conveyancers checking a title won’t pay too much attention to the seller’s response, for example, to whether any restrictive covenants affect the use of the property, however, an answer contradicting the title could lead to further additional enquiries being raised.
How about CI?
This one stands for ‘Correct Information’ but I’ve just made that up and I’m not really expecting it to catch on. The potential benefits of gathering upfront information in a transaction relies on the information being correct and complete from the outset. Sellers are faced with completing a plethora of forms for various things and the standards of these forms can vary. An increase in the number of questions may simply mean more incomplete and incorrect answers, more risk on the seller for getting something wrong and more enquiries asking for a response or clarification.
This is where it’s suggested the seller contacts their conveyancer in the earlier stages to help complete the form and highlight issues that may need to be remedied. Again, potentially a good concept for pre-empting issues and ensuring forms are fully complete and correct but another burden and risk for the conveyancer?
More info, more risk?
‘The seller said there was a mobile signal but my network doesn’t have a signal and now I can’t work from home, I’ve lost my job and I can’t pay my mortgage, I want to sue.’
Perhaps an extreme example (or perhaps not!) but the increased information could move us away from the traditional ‘caveat emptor’ basis of property transactions meaning increased risk for sellers and in turn another increased burden on conveyancers having to deal with issues arising from material information provided. Another point in contention as far as risk is concerned is that there is no legal requirement on the seller themselves to provide the material information, but instead an obligation on their conveyancer to provide the form to the sellers. Likely one of the many points that has led to the delay in compulsory use of the form imposed by the Law Society and a consultation being launched.
The point of providing upfront information is to help address longstanding issues of failing transactions and delays and seeking to address that is for the benefit of all stakeholders. Obviously there are a few concerns and this has led to the delayed compulsory use of the form for CQS accredited firms. It remains to be seen how the Law Society will look to address these concerns at the end of the consultation it has just launched and whether or not the form will end up ‘materially’ any different to its current form. Did anyone see what I did there?
HIP Replacement?
Decent abbreviation, but a bit creaky and it eventually broke. For all the issues with HIPS, its concept of providing information upfront to a buyer looked to address one of the underlying problems of the lengthy process of buying a property. Maybe the trend is towards a replacement of the HIPS style of preparing all information upfront using digital solutions to ease the process and iron out some of the issues.
More information, More digital solutions?
The use of legaltech solutions is one area that could certainly be utilised to assist sellers and conveyancers in completing and reviewing these lengthy forms in an expanding world of digital conveyancing. Language models can read, and understand, lots of information (very quickly), and pick out potential issues that can both reduce the risk of those being missed and speed up the process for the conveyancer. More and more, the world of conveyancing is embracing the use of digital tools for various tasks, so utilising new solutions may help share some of the burden of having to deal with more and more information.
It’s hard to deny the basic premise that more information upfront leads to a more informed buyer, and can reduce the likelihood of getting months into a conveyancing transaction before a major issue comes to light. There’s certainly the potential for lots of data to be provided at an earlier stage in the process but the balance of what information, how much information and how reliable that information is, are issues that will no doubt continue to be debated for some time to come.
Stephen Watson is a conveyancer at legal-tech business Orbital Witness
