Pre-contract enquiries challenge no better say conveyancers

An overwhelming majority of conveyancers suggest the continuing issues with unnecessary and excessive pre-contract enquiries is not improving in the latest sentiment survey by Today’s Conveyancer. First run in 2022, the survey is now in its third year and asks conveyancers their thoughts on the current nature of the number and nature of pre-contract enquiries. 

96% of respondents to the survey, which gathered insights from nearly 150 respondents, said the situation is unchanged or worse than 12 months ago in response to a question about their general attitude towards the current nature of the debate. 70% said the number of enquiries has increased with just 3% saying the number of enquiries had decreased; 26% observed no change. This uptick in enquiries has been accompanied by ongoing debates regarding their relevance where 53% said they felt the relevance of enquiries has decreased, whereas 36% feel it has remained the same.

The sentiment chimes with the results of the survey in 2022 and 2023 where conveyancers indicated they felt the volume of enquiries was on the increase, and relevance on the decrease; indicating there is a perception little has changed over the past 24 months. One company who is monitoring the number of enquiries is Legalito whose statistics over the past 4 years indicate the average number of freehold enquiries stayed static at 16 per case Leasehold did see a rise from 19 to 22 during the first 3 years but has dropped back to 20 in 2024; with CEO Peter Ambrose commenting “I remain concerned that too many firms are still not allocating time to examine their approach to enquiries and are merely treading water.”

Gemma Fulbrook-Felstead from Collaborative Conveyancing, who launched their Enquiry Manager product in March said they welcome the annual survey around the ‘well-documented issue of additional conveyancing enquiries’ adding

“The results speak for themselves. As the longest day approaches, it’s unsurprising that many conveyancers still spend daylight hours on case files. Direct feedback from this survey confirms that, for the third year, many conveyancers agree that both the number of enquiries and their relevance remains a concern for practitioners. We encourage law firms to explore external options to lessen the administrative workload, directly correlating with happier clients.”

In 2023 respondents pointed to a lack of CQS enforcement, poorly trained staff, and overly automated processes as leading contributing factors. In 2024 ‘Increased legislative burden (Building Safety Act, Leasehold & Freehold Reform Bill etc)‘ and a ‘Perceived lack of staff expertise and training‘ feature prominently in the thoughts of practitioners when it comes to the reasons why the situation isn’t getting any better. Other factors like fee earner workload, lack of enforcement action, and proactive information gathering also hold significant importance, while implementation of upfront and material information, increased automation, and home mover demand for property information are seen as less critical.

Increased Legislative Burden

Four fifths (80%) of respondents rated the increasing legislative burden as a important or highly important (ranked 4 or 5 on a scale of 1-5) factor in the number of enquiries. One anonymous respondent commented ‘everyone is worried by both BSA and PI claims and lenders being ever more risk averse. We work in fear rather than being client focused.’ Indeed half of respondents ranked ‘Fear of negligence claims’ as a highly important important factor.

Is it training, workload or tech?

Alongside the increasing legislative burden, the issue of staff experience and training stands out as the most critical according to the survey results, with 82% of respondents ranking it four (important) or five (highly important). The workload placed on staff is also a concern as nearly three quarters (72%) of respondents said workload was an important or highly contributing factor to the number and relevance of enquiries.

“It’s interesting to see that the majority of people consider that the situation with regards to enquiries is getting worse and that the number of enquiries are increasing. Of course, as identified by the survey, this could be due to a number of factors including the increasing number of issues that conveyancers are expected to advise on, e.g. climate change, together with the fear of possible claims for not providing such advice.”

says Sarah Sams, Head of Residential Conveyancing at Dutton Gregory LLP

“This is in addition to new legislation such as the Building Safety Act and the Leasehold and Freehold Reform Act. It therefore doesn’t necessarily follow that the increase in the number of enquiries is down to conveyancers’ reliance on technology or the lack of expertise and training amongst conveyancers”

Opinions on the increasing automation vary; responses were the most spread out across the rankings of one to five with polarised views shared across the survey.

  • 1 (Highly Unimportant): 21%
  • 2: 11%
  • 3: 24%
  • 4: 19%
  • 5 (Highly Important): 25%

“Conveyancing appears now to be the folly of some tech firms who believe automation and AI is the way forward and now demeans and belittles the many years of knowledge and experience a qualified conveyancer has in actually interpreting and then reporting to a client on legal issues. Also mission creep is an understatement given we are sometimes expected to be forensic accountants, surveyors, valuers, tax collectors and a whole range of other non-legal roles that are far removed from property law in a typical conveyancing transaction. All the risk appears to be on us (and so higher premiums) and if at least properly trained people can raise appropriate inquiries as per the protocol then at lease this aspect can hopefully become more consistent and shorter in a transaction. Technology cannot raise or answer enquiries: only trained conveyancer”

said one comment. On the pro-side of automation David Jabbari, CEO of Muve 

“Enquiries test the personal organisation skills of conveyancers. Dealing with something quickly, and in one go, is far better than multiple backwards and forwards emails where a lot of time is spent just re-locating the file and the current state of play. Fortunately the latest generation of case management systems offer enquiries handling platforms which enable outstanding enquiries to be collated more easily.”

Lack of Enforcement Action by CQS/The Law Society/CLC

In the wake of a petition to bring a vote of no confidence in The Law Society, sentiment around the lack of enforcement by membership bodies and regulators is bullish. 63% of respondents said the lack of enforcement action and policing was an important or highly important factor. Comments included

“The CQS protocol’s relevance and purpose (to minimise unnecessary enquiries) appears to slowly be fading in favour of material information, against the well established principle of buyer beware.”

“CQS is an absolute waste of time and space. If they’re not going to enforce, or ensure that the CLC also fall in line, there’s no point in having the Protocol.”

“I feel very strongly that the Law Society and CLC are very inactive in support for Conveyancers. I feel very strongly that the waters have been extremely muddied between what we are meant to do and what people feel that we are meant to do. The Law Society and CLC are very poor in making that distinction clear.”

Approached on the results of the survey, a spokesperson for The Law Society said

“The Conveyancing Quality Scheme (CQS) is a recognised quality standard for residential conveyancing practices and aims to support practices to meet the required standard for accreditation,” said a Law Society of England and Wales spokesperson.

“In line with this approach, CQS accredited practices are required to undergo an annual reaccreditation assessment. As part of this assessment, we review their compliance to ensure that they are continuing to meet the requisite standards.

“Where there is a concern regarding compliance, the CQS office has assessment mechanisms to investigate further. Where these have been exhausted and concerns about a particular practice remain, the CQS office may carry out an onsite assessment. The CQS office may set out actions to be taken by a practice to ensure that they rectify any concerns.”

Implementation of Upfront and Material Information

Given the debate raging around the merits of up front and material information and its impact on the profession a significant proportion of respondents ranked the issue an unimportant in the context of pre-contract enquiries. Nearly 40% of responses ranked it one out of five on the importance scale. 19% consider it highly important. Similarly 73% of respondents suggested that ‘Home mover demand for information about the property’ was unimportant or neither important nor unimportant when it came to the impact on the debate.

Respondents identified proactive information gathering as important, although the availability of the information elsewhere and not the responsibility of the conveyancer was evident. Two thirds said ‘Information requested could be proactively gathered elsewhere’ was important or highly important.

Comments continue to demonstrate the polarised view of practitioners. Chris Proctor, Solicitor & Head of Conveyancing at Hattersleys Solicitors said:

“The proponents of upfront/material information are generally not practising conveyancers and don’t understand what causes delay in the average conveyancing transaction. Overzealous/irrelevant enquiries from poorly trained conveyancers are often one cause of delay. The new TA6 will only exacerbate that problem because the average seller will not know how to answer several of the new questions, resulting in enquiries being raised. The Law Society president is detached from reality if he believes that sellers will willingly pay conveyancers to help them complete the TA6 before a sale has even been agreed.”

A question on the impact of the updated TA6 protocol form on the number and relevance of enquiries reveals 80% of respondents believe it will increase the number of pre-contract enquiries; and features prominently in the comments section at the end of the survey.  One anonymous comment said ‘(the) new TA6 is misconceived and will increase cost complexity and delays in home buying’ while another added

“The new TA6 is a huge mistake. It will increase enquiries and slow the process down. Factory firms with less trained staff and automated process will heap even more of the burden upon the seller’s conveyancer. It used to be caveat emptor. Seller clients beware what you say.”

One comment that perhaps sums up the sentiment around the new form suggested “the new TA6 sucks.”

Final Thoughts

Practitioners have shared their thoughts on the issue and results of the survey with Today’s Conveyancer. Please feel free to add any comments to the article

Sarah Dwight, of Birmingham-based Sarah Dwight Solicitors says

“Enquiries are one of the stages in a transaction which delay progress. It as if the more enquiries asked, the better. But I don’t believe that is correct. If the title is in order and the Protocol forms are completed correctly, then there should be no need to ask pages and pages of enquiries. And, frustratingly, many of the enquiries are pointless – don’t ask me about the plan because this is covered in the contract terms ; don’t ask me whether any items are on hire purchase, because again, this is covered in the contract. Think about the enquiries before asking them! Check if they are needed (as there are times when specific enquiries are needed) but consider whether any that are asked will advance the progress of the transaction.”

Rob Hailstone, CEO of Bold Legal Group adds

“The pre-contract enquiry debate has been growing over recent years, and it seems that some law firms that rely heavily on tech and employ less experienced conveyancers may be the main culprits. The fact that CQS is not particularly well policed and enforced does not help. Maybe that will change when the new TA forms become CQS required on the 25th June. I hope so. In the meantime, as one of your respondents implied, the pragmatic approach is best: “Most questions asked, CQS or not, are information a buyer might want raised about a property. I simply get on with the job without argument.”

 

 

 

 

4 Responses

  1. “Most questions asked, CQS or not, are information a buyer might want raised about a property. I simply get on with the job without argument.”

    Exactly the approach I, as an experienced able conveyancer take. Amidst this whole discussion we lose track of why we are going through the process – we are trying to assist clients in one of the biggest decisions of their lives in moving house. So the questions asked are not only to find out information that may be pertinent, some will actually come from the clients.
    That human touch can never be replicated by technology and it’s something its proponents still do not get judged by their persistent arguments and modus operandi. Whilst we have other conveyancers who know the CQS Protocol inside out, but adopt a “computer says no” approach which shows a lack of common sense.
    I feel the Protocol causes more harm than good and if MI is to come in it should be scrapped. Conveyancers need to just get on with conveyancing.

  2. Technology cannot raise or answer enquiries: only trained conveyancer”.
    Wow. No wonder the industry is where it is! This statement is not true. I don’t think technology can raise every enquiry or answer every enquiry but it definitely can some. If you think I’m wrong then I implore you to do a little research into AI and Generative AI (ChatGPT etc.) in particular.

    In essence, a highly trained AI can understand legal documents, raise red flags and suggest a recommended course of action, ie enquiries. This technically can be done today.

    If you do not believe me, contact Orbital Witness and we can explain why GenAI is going to revolutionise the way we live our lives, not just how conveyancers handle enquiries.

    A couple of people will be at the Bold Legal Group Conference so please search us out and we discuss it further.

  3. The major problem with excessive PCE’s is that many are ill thought out and “standard” in nature.

    It is perfectly simple to add “Our client has specifically asked that we raise the following:” for any non-Protocol questions that clients want.

    But 4 pages of standard questions that have no relevance to the particular property? No, I’m not going to waste my time or my clients time wading through them. I send them back, unanswered, asking for only Protocol compliant questions.

    I’m not going to answer questions on whether a third floor flat has a conservatory, whether a tramline on the other side of a London Borough has an adverse impact on this property or similarly inane questions.

    1. This is where technology can play a huge roll in making the process ore efficient. Enquiries can have numerous rules associated to them like distance, property type, transaction type…the list goes on. If you can logically work out what enquiries need to be raised from the information you’re reading, whether it’s from a document, CMS or email, the chances are a tech solution can do the same and save everyone a lot of time and money.

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