A leading conveyancer has questioned whether professional indemnity insurers would be happy at the prospect of solicitors being asked to advise on survey-related risks to property such as climate change.
Philip Armstrong, owner of Armstrong Solicitors in Northern Ireland (NI), said professional indemnity insurers “must surely be asking the question” regarding the climate change advice responsibility mooted to fall upon conveyancers.
With lenders reportedly expecting those acting in a transaction to be their “in-house conveyancers”, Armstrong suggested the experience many are having with lenders is “fairly terrible” amidst ongoing difficulties and delays that plague transactions.
This experience, he says, would be worsened further by lenders seeking to impose further duties upon conveyancers such as climate change advice – something Armstrong says conveyancers are simply not qualified to advise on.
Rather, Armstrong, who is Chair of the Conveyancing & Property Committee of the Law Society of Northern Ireland, asked one pertinent question: why should the conveyancer be the sole advisor in a transaction?
“There needs to be a narrative nationwide to say that if you’re buying a property, you need a surveyor and you need a solicitor.”
Armstrong, who describes himself as having a “crusading zeal to improve much of the conveyancing process”, said the role of the conveyancer and the surveyor should be “complementary”. Both roles are requisite – the absence of a surveyor should not mean a conveyancer stands in place, he suggested.
Rachel Griffiths, Head of External Operations at SDL Surveying, said there is a “real need” for purchasers to obtain a full survey, and that agents and brokers are best placed to point clients in the right direction:
“To my mind, there is a real need for house purchasers to invest in a level 2 or level 3 survey for themselves and now more than ever.
Different lender guidance equates to the possibility of different reporting on issues, and often the applicant/purchaser never sees a copy of the mortgage valuation as the lender has a nondisclosure policy. The lender’s priority is value.
The home purchaser survey will comment on the property as a whole and include Japanese knotweed, energy efficiency, climate change, and more.”
However, according to a RICS report in 2020, only 22% of purchasers have their own survey. Griffiths suggested there is a need for all sectors to recommend one to clients, focusing on the fact they are “not a barrier to sale” and can support the homemoving process.
Yet, Armstrong says the climate onus being pushed onto conveyancers is the latest element of “mission creep” – and one straw will eventually break the camel’s back:
“I have no difficulty advising a purchaser of the various things to consider when buying a property, be it broadband speed or the availability of good schools. I also have no difficulty with observing that they may wish to consider the climate change [aspect] of where they’re moving to.
But in the same way that I’m not advising how good any given school is, I’m not advising on the climate change implications upon a property.”
Armstrong described the recently published view of one leading environmental barrister that conveyancers have a duty to advise clients of climate change risks to transactions as an “unsettled view” that neither he, nor the vast majority, agree with.
With this in mind, he seeks further clarity from insurers on exactly how they see the issue. One result Armstrong sees is a rise in separate representation – which led him to raise the views of one senior manager at insurer Zurich several years ago, indicating this has long been on their agenda, particularly following the risks associated with lender work following 2008.
Should nothing change, Armstrong believes there is an “existential threat” to the role of a high street conveyancer in Northern Ireland at least, though the similarities in England and Wales are vivid.
He described the outlook as “frankly terrifying”, particularly for high street practices, resulting from several factors. One is the “brain drain” from alternative legal service providers offering benefits to graduates and staff that high street firms and conveyancers simply cannot match.
Those that do wind up in conveyancing work find themselves “overworked, underpaid, and overstressed”, and Armstrong says the mission creep from lenders and associated pressure is a “massive issue”.
Armstrong also described the ongoing pricing of conveyancing work as “turkeys voting for Christmas”:
“I hear solicitors complain all the time about the fact that the estate agents easily get 1% or 2% commissions and our fees are nothing like that. That’s our fault as a profession. We devalued ourselves first, and now we complain that other people devalue us.”
In order to see a better working environment, he says conveyancers must be able to have more flexible working to retain those in the workforce who prioritise balance with their personal life. He adds firms need to do fewer cases at a better price and that conveyancers “need to be more respected for the expertise that they have”.
All of this, Armstrong says, is “part and parcel” of the debate around separate representation and the associated conversation around climate change advice. Ultimately, conveyancers are not alone in feeling the impact of “mission creep” – it determines the client experience, too.
