Readers have their say on updated protocol forms

Amidst much discussion surrounding the revised Law Society conveyancing protocol forms, tailored to encompass the latest directives from National Trading Standards regarding material information, Today’s Conveyancer delves into the heart of the matter, probing readers for their insights.

The latest iteration of the Buyer’s and Seller’s Property Information (BASPI) schema was launched with amendments to both Part A (the disclosure of material facts) and Part B (additional information required for the legal process). The release also came in the same week as updated TA6 forms were released by The Law Society.

Today’s Conveyancer uploaded a poll onto LinkedIn asking what readers think about the updated conveyancing protocol forms. We presented four answers: “A positive change”, “No anticipated impact to work”, “A negative change”, and “Undecided/unknown”.

The poll received 210 responses, revealing: 78% of voters deem the update as “a negative change”. Meanwhile, 14% remain “undecided/unknown” on the matter, while a mere 4% perceive it as “a positive change” or anticipate “no impact to work”.  David Jabbari, CEO at Muve, echoes the majority of the votes and said:

“The obligation to procure material information at the point of listing property is one that was placed on estate agents by NTSELAT.  Agents may choose to meet their obligations by working with a law firm or other third party provider.  By broadening the scope of enquiries in the protocol forms to include this, the Law Society has potentially and unnecessarily widened solicitors’ liabilities in negligence without any good reason.

This should be no surprise to anyone who has seen the Law Society move over the last 25 years from being a credible voice for lawyers to a ‘lawyer obstruction unit’, always seeking the most extreme and uncommercial implementation of any measures likely to impact the legal profession. This decline and fall of the Law Society started in 1987 when they appointed a former union leader, and non-lawyer, as head of professional standards. It has been a one way journey downhill since then.”

Gareth Richards, Society of Licensed Conveyancers Deputy Chair said that it is “interesting and not wholly unexpected” to note the level of negative responses to the Law Society’s updated conveyancing protocol forms. He continued:

“…given the drastically increased size of the forms and the nature of the information required.  Whilst we are supportive of the material information requirements, their purpose is to ensure that there is greater disclosure of more property specific information during the marketing of a property, in order to allow potential buyers to be better informed before making an offer.  The key words here are “before they make an offer” and given that the Protocol Forms are generally supplied as part of the Contract documentation received after the offer and acceptance stages of the process, this rather flies in the face of the “before offer” information.

I also feel that an opportunity has been missed to engage with the profession as a whole to review the wording of the Forms, especially as conveyancing enquiries are widely regarded as one of the most contentious stages of the conveyancing process.”

In response to the ongoing discussion, a Law Society of England and Wales spokesperson said that they are “aware of the concerns” that have been raised by some of their members and have been “looking into them”. They said:

“Once we have had the opportunity to examine those concerns, we will be in a position to consider what, if any, additional guidance, clarification or measures may be necessary.”

9 Responses

  1. The revised TA6 is internally inconsistent, insisting on the one hand that it doesn’t require a Seller to carry out searches and third party enquiries and on the other requiring information that can only be obtained by doing so (such as searching for flood risk information). Some of the questions are so badly framed that the true and correct answer will yes or no when what is desired is a response providing information. This is a very basic error. At least one of the questions (on the physical state of the property – not an area Sellers have hitherto been encouraged to address) is so internally muddled as to be impossible to answer sensibly. I do not recall any consultation of the profession on the format but I cannot believe a form so flawed could have emerged with the benefit of profession-wide oversight.

  2. I spent over 2 hours going through the new TA6 with an offshore client this week, partly due to the fact that I was unfamiliar with it. Do we now need to factor in to our fee estimates on sales the extra care that we need to take in advising our clients how to complete these forms?

    The first problem was question 2 in Part 1. The agreed sale price in my clients sale is more than the original asking price, so which figure goes in there? I decided to go with the agreed sale price. Maybe changing it to ‘sale/asking price’ will help.

    By the way, anyone spotted the typo in 21.2 on page 26? ‘Occupies’ should read occupiers. How was that allowed to happen?

  3. The new Regs will place a significant stress on an already challenging market. While the intention of the forms might be to help smooth the sale and conveyancing pathway, it will place an unfair burden on sellers (especially of leasehold flats) who are already fighting a depressed market and higher legal fees if the property is in a higher risk building. A change like this should be consulted on and accompanied with a proposal for buyers to pay sellers’ professional fees if they pull out for any reason other than a negative survey, deliberate misinformation or risks that cannot be indemnified. The leasehold property market especially is already an incredibly challenging one with an increase in sales falling through or higher legal costs for leasehold conveyancing due to increased PI costs for HRBs. I’ve heard some firms have dropped leasehold conveyancing of HRBs altogether, the changes will only lead to more of that is true.

    The departure from common sense continues …

  4. It feels as though the Law Society has been pressured, or I day say even bullied into dragging solicitors along with this discredited ideology of up front information. As I solicitor I feel embarrassed, the Law Society has made fools of us.

  5. As a prior author of an earlier edition of these forms when a member of the Property Section’s Exec’ Committee, I was amazed that so many of the principles I was guided to adopt on prior editions eg questions should be clear and capable of answer by a typical consumer, seemed in this proposed latest edition to be so technical in content or unclear as to expectation as to be above the expected competency of many lay completers. The linkage between agents’ marketing requirements in contrast to a live conveyancing transaction is currently unclear given I believe these have been issued without full guidance of intended application. Asking respondents to go online to locate the UPRN code for their home; or for leasehold confirming the end date of a lease or when the ground rent next increase would require the respondent to have reviewed and understood the contents of their lease. Similarly on freehold: ‘Does you title contain any restrictive covenants affecting use?’ or ‘ Do you have consent for any matters that need permission in your deeds?’ is ambiguous. Then there is sloppy use of text such as ‘service charge bill’ rather than invoice; another answer option of ‘not sure’. ‘What construction type or materials…?’ is surely beyond anyone other than a surveyor to answer; similarly ‘any known issues with mobile signal coverage’ which could relate to the service provider not the property itself. Also questions on Accessibility which should be evident on inspection. These forms don’t appear to have been designed by anyone who has actually carried out any conveyancing for consumer clients in recent memory, understanding how challenged our clients can find the existing more straightforward forms. These require a major overhaul and re-think by consultation please before they are placed live.

  6. Completely agree with the above comments. The updates are not in favour of consumers or conveyancers. I have written to the Law Society about this and hope they listen. If they do not, they can expect more bad press about the Conveyancing industry I expect and a further slow down in turnaround times and increase in consumer costs.

  7. The TA6 form now is non compliant with TLS cqs standard in relation to property specific questions. Mobile phone signal and property construction are issues for surveyors and estate agents to answer not to be contained in conveyancing forms.
    An estate agent local to us has a questionnaire for clients marketing for them with these types of questions in. That’s what should be done then there be no blurred lines.

  8. To be fair to the Law Society, they have come back and acknowledged that concerns have been raised and they will be looking at them. Hopefully they are good to their word but they need to in my mind announce a delay to settle everyone down.

  9. Maybe solicitors doing conveyancing work should consider converting to CLC registration – then they won’t have to use these dreadful forms as licensed conveyancers aren’t bound by the Law Society’s protocols or procedures…?

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