The TA6 property information form continues to generate a headline-writing life of its own at the moment, with the news The Law Society has now delayed the mandated use of the updated form until January 2025.
No doubt this follows some of the ongoing criticism placed at the door of The Law Society that it has not consulted members and stakeholders sufficiently over the inclusion of material information (MI) requirements, even though – lest we forget – MI has been required since 2008.
You will have read about proposed votes of no confidence and such like, where the perceived problem is more about the MI being included itself, which of course does not fall at the door of the Law Society but NTSELAT, who had a steering committee with representatives from TLS, CA, CILEX, SLC, PropertyMark, RICS and TLIC as well as the property portals and spent two years consulting with them. The CA certainly consulted with its members during events and no doubt the others did too.
But let’s be clear, identifying the MI simply means the conveyancer can tell the seller what things would impact the average buyer and are worth resolving before a buyer is even found, and they are too emotionally invested in buying.
And, of course, from a conveyancing point of view, when you present most firms with a summary of all the MI that should be made available within the property guidance documentation, they would quite rightly say they would be able to advise buyers and lenders on pretty much all of them, from Parts A through to C.
From whether there is a private water supply, to whether there’s a private septic tank or a short lease to any requisite restrictions to the property, rights of way etc. Just all the things a prospective buyer and their lender would genuinely want to know, and would help move them away from a property inappropriate for their intended use, or towards a lender that would lend on it, rather than later down the line when they’ve made an offer, got skin in the game, and are suffering a severe bout of ‘loss aversion’.
Which makes the argument that some put forward in our industry – we shouldn’t be advising clients on this info – rather defunct. And perhaps takes us into a different realm about the TA6 itself – as mentioned above – and how it functions within a digitally-progressive environment, which I think we can all agree we’re moving quickly into, if not already in.
After the vote of no confidence, what will be next? A report to the Competitions and Market Authority (CMA) on the monopoly position created by the Law Society CQS being required by lenders, or to the SRA on the Law Society acting as a regulator demanding the use of the form?
Or will the Law Society dissenters feel able to act independently, after all we should also not forget the first page of the CQS Protocol says the best interests of the client supersedes the protocol itself, which would seem to point away from the situation we currently have.
And is it in the best interests of the client to use forms where there is no digital usage or operability with the TA6? It doesn’t fit within the Property Data Trust Framework (PDTF), there’s no opportunity to pre-populate it – meaning considerably more paper-based work/resource for the sector – and we have certain companies barred from using it in the first place because their credit score does not fit the annual license fee requirements.
As outlined, in a ‘different world’ we have a much more modern process where the relevant authorities’ (HM Land Registry/Local Authority/Water/Drainage, etc) data pre-populates the BASPI and AI identifies the relevant MI for each individual stakeholder.
I can’t help but think there is a wider problem that has not yet been addressed either, Generative AI. Unless we keep up with this as an industry, and other industries are with $40billion invested this year so far, a disruptive technology could steal a march while we are all worrying about the TA6.
We need to embrace these things now to ensure we take the benefit of GenAI where we can but ensure the advice element is delivered to the client in the right way to meet their needs, and from a qualified and experienced professional.
Anyway, the fact is the movement we have and the use of MI guidance, and the opportunity to use different forms to fill those requirements, effectively eradicates buyer beware from that perspective. Enabling us to be proactive.
We need to be much more aware. While the Law Society’s FAQs on buyer beware are ambiguous, referencing a case (Office of Fair Trading -v- Purely Creative Ltd [2011] CTLC 45 – which is about inserts in magazines that don’t imply the full costs of claiming prizes – we have a case, heard on appeal at the High Court – SPS Groundworks and Building Ltd v Mahil [2022] EWHC 371 (QB) – which confirmed the seller has a duty to disclose defects to the buyer.
So conveyancers do really need to advise sellers on solving defects prior to agreeing the sale or advising potential buyers of defects prior to offer.
And just last year Rosser -v- Pacifico Ltd [2023] EWHC 1018 (Ch) where the seller failed to claim ‘buyer beware’ and should have verified their belief that there was no breach of planning permission and building regulations, when in fact they had installed a velux window in breach of planning permission required under a conservation area.
The window would have to be removed which would mean the room could not be used as a bedroom in compliance with building regulations. The defendant stated the buyer’s search would have revealed there was no planning permission for the window but the judge held that the buyer could not have known the window was added as part of the seller’s conversion work.
However, the seller cannot be expected to know what a buyer might consider material if it would not be material to the average consumer, so we do need to still undertake the due diligence on those matters specific to our client’s intended use and enjoyment of the property – but arguably that is as far as buyer beware now extends.
The views currently being raised around the TA6 seem like something of a red-herring compared to those that are actually going to deliver a better environment for firms and their clients, that are going to make them more efficient, are going to cut down on wastage, are going to allow them to charge more, and are going to provide better client satisfaction with upfront information ensuring everyone doesn’t waste considerable sums of money and resources.
If the current forms don’t work, we don’t actually have to use them, and there are better alternatives which work in a digital environment, then either they need to be changed or firms should vote with their feet.
9 responses
I’m sorry but consulting with the Conveyancing Association is not the same as consulting with the conveyancing profession. The CA represents the large factory style outfits, the sorts of firm that reflect everything that is wrong with the profession. They do not represent conveyancing solicitors at the coal face who deal with conveyancing matters day in day out. I for one am sick of the profession being hijacked by these types of vested interests. Your arguments are completely flawed and show a shocking void in your knowledge of this profession. Leave us to make our views known to our representative body and you continue to do what you do at your peril. It is time for the real conveyancers to stand up and be counted.
Yet again the actual issue is ignored. This isn’t about digitisation or the precise nature of the principle of buyer beware.
The suggestion is that digitisation and technology and Gen AI will make everything better.
Make what better? The timeframe within which the property transaction process completes by shortening that process.
But why is it as long as it is?
It isn’t because of a lack of digitisation etc. In the 1990s the process was much quicker and that was very much a paper based system.
There has been no proper analysis of why some businesses take so long and others do not. The analysis has been about data and pinch points and the views of estate agents.
Estate Agents have the data to explain “why has the timeframe grown?”. They have the data of when conveyancers were advised of the parties details, when exchange took place and when the transaction completed. This data will identify the slow firms and the quicker firms. Then we can look at what sort of firm they are, what model do they work to, do they use technology or legal thinking to drive the process, do they send Standard Enquiries and insist upon replies without actually knowing what really matter?
The digitisation propaganda is designed to hide the reality and to deflect attention and proper analysis away from those firms who have created processes which have slowed the process and who have distorted the market by paying referral fees. Technology employed at the expense of qualified conveyancers. The over promising from technology suppliers and tech gurus is at fault.
Before one more word about digitisation is uttered let the Home Buying and Selling Group undertake proper research to establish why we are where we are and what the real issues are. What’s to be afraid of?
Once again Ms Rudolf writes an article and completely overlooks the elephant in the room. The Conveyancing Association represent those firms who are the lowest common denominators within the legal profession. Those firms who are responsible for professional standards hitting all-time lows weekly, and causing transaction times and frustrations to increase all the time. Hence the CA are attempting to massively dumb down conveyancing to the level of the firms they represent. End of.
I thought it was the job of serious journalists to ask difficult questions? When is someone going to ask some of Ms Rudolf?
Can we all at least appreciate for a moment that there is one member of the CA here actually citing some case law. Presumably this is a first?
Respectfully I think it the case that Rosser more so shows the danger of answering “catch all” questions. The seller had said they were not aware of any outstanding planning permission/ building regulations issues and it was on that the buyer’s claim of Misrepresentation succeeded.
I’ve read through this article 3 times now and struggling to make any sense of what she’s saying.
Why do we continue to give credence to The Conveyancing Association as a sensible voice for conveyancers? They do not speak for the vast majority of sensible conveyancers.
I see the Emperor prancing about in his new clothes again!
I genuinely do not know what the article is trying to say.
Material information, I might be wrong here but where is this being provided by the agent? I’m looking at a Leasehold property at the moment and there are 5 or so for sale on the estate. Only one agent is marketing it with some basic leasehold information (ground rent, service charge and lease length details). Why are the others not?
Conveyancing – First thing is first, we all need to figure out why it is taking from the point of agreeing the sale up to 4 weeks at times for the contract paperwork to be issued. Frankly, for me, no offer should be put forward or accepted unless a buyer has solicitors instructed, payments made on account, ID checked, source of funds checked. Same goes for the seller, a seller should not be marketing until a Solicitor is instructed, deeds have been obtained and the title together with their forms checked. The moment an offer is accepted, contracts should be issued straight away (with errors/updates already sorted) and searches ordered.
Once we get the first part right, other parts of the system can be looked at. But if we are not even getting the basics sorted out early, there is no point in moving on to the next stage.
Take my Leasehold purchase I am looking at, at the moment. Offer agreed 07/06. I was instructed by the buyer 10/06. It is now the 27/06 and the contracts are still not with me. Seller only instructed on 25/06 and the matter remains ‘on dictation’ at the sellers solicitor. For me, that is unacceptable. My client has nearly pulled out of it already due to the delays and the agent/seller/sellers solicitor only have themselves to blame.
Also doesn’t address the issue of rubbish mortgage brokers. e.g. Client instructed me before sale (before Christmas). Buyer found over Christmas, contract papers issued early January. Related purchase instructed in March. We are now sitting and waiting ready (even after dealing with some tumultuous issues on the sale). It is now end of June and our buyer still does not have a mortgage offer issued by (surprise surprise) the “recommended” broker. Also another case where my client couldn’t secure a mortgage because she had a child. “Recommended” broker couldn’t help her so I went to someone who did and got that one through with a screaming developer at the top of the chain. Took some hard work (and giggles) with my counterpart along the way.
If a buyer has not secured a mortgage after 6 months, what due diligence has the agent done on the buyer? That says to me there are serious problems with the buyer and the offer should never have been put to the seller in the first place. Is it a case of the agent accepting any old offer and thinking about the consequences later?