Have your say on the future of Conveyancing: Complete the DPMSG survey

Before I get into the meat of this article, I recognise that with Easter completions approaching, you may not get a chance to read to the end of this piece, so I will shout out now for the Digital Property Market Steering Group (DPMSG) survey you must complete to have your say on the planned industry protocol, based on the CA’s own Digital Conveyancing Protocol. 

You can fill out the survey here. Click on this, have your say, and then come back to this article if you have time.

Welcome back.

It would be rather naïve to assume everyone active within the conveyancing, or wider property market, has the same view on how the industry should move forward, what changes – if any – are needed to the process, and how they might be delivered.

However, there are a lot of opinions, many of which present ‘facts’ and it would be remiss of us not to investigate and clarify when opinions are presented in such a way.

For example, The Property Lawyer Action Group (PLAG) have put a lot of time recently into highlighting the risk of unintended consequences around the provision of upfront information and the regulation of estate agents as they see it – you can see those opinions on its website; we take our responsibility in this area seriously so we thought we should check these out.

At the CA our mission is to support our members in improving the home-moving process so we have completed significant research and consultation to ensure the delivery of the solutions recommended by the Home Buying and Selling Group (HBSG) will positively impact conveyancers as well as consumers.

Participants in the HBSG were in the lucky position of seeing first-hand a range of case studies where conveyancers, estate agents and technology companies have worked together to deliver upfront information and the material information summary necessary to comply with the law – yes it is already mandated by the law in the Consumer Protection From Unfair Trading Regulations 2008 (CPRs).

Last year, National Trading Standards (NTS) published guidance which means conveyancers, as well as estate agents, can now see what the minimum requirements the average consumer has to be told – arguably eradicating caveat emptor for everything other than the specific use and enjoyment planned by the individual and not communicated to the seller (and yes, there is case law and Common Law on that already).

So this means rather than hoping the buyer’s conveyancer will not spot an issue, the seller’s conveyancer can be proactive and on instruction review the title and manage the expectations of the seller by explaining what an issue might be and whether they can resolve it.

Of course, some sellers will not want to go to the cost and hassle of fixing an issue (just as some do not want to redecorate a probate property) but will understand they will not get full value for the property as a result and it might cause delay.

The wonderful result of embracing the opportunity to be proactive was that, as well as complying with the law, the collecting of the information on listing meant the transaction could exchange in less than half the time and the number of transactions which failed plummeted.

For conveyancers this made their working life so much better, enabling them to concentrate on giving advice rather than wasting time chasing missing information or reassuring a chain they had chased. Plus, of course, the risk goes down because the buyer has all the information prior to offer and the lender can ask the valuer to value based on the true position rather than an assumption – win-win all round.

And for those worried this will turn estate agents into conveyancers – a worry presented by the PLAG – well, all I would say, is that the law on letting has not changed them into plumbers or electricians required to produce Gas Safety Certificates and Electrical Test Reports.

Estate agents and conveyancers have a very different psychology and skillset, which is why when you look at countries where vendor disclosure is required, the person measuring, listing and marketing the property is a different individual from the person undertaking the legal work.

In Norway and Scotland, for example, lawyers employ estate agents, just as currently many of your law firms will employ accountants and marketeers to enhance the skillset in their firm with the right expertise to attract business and comply with HMRC and regulatory requirements.

So, upfront information enables property lawyers to help estate agents with the law, as they already do – for example, in new-build it allows exchange to take place within 28 days, where there is no chain of transactions, because the developer’s lawyer provides everything, including the searches, in the contract pack.

For a seller’s conveyancer the provision of the material information is not a new skillset, it is what we have been doing for our buyer clients for years; we even have standard reports to deliver the information based on the things which would impact the average transaction, because we have the expertise to spot an issue that might impact the lender or the ability to sell the property for full value.

The Law Society Conveyancing Handbook references the provision of search results by the seller (Section B10.2.1) and the reversal of caveat emptor as a result of CPRs. So now at least the guidance from NTS sets out the minimum requirements of caveat venditor.

Now of course, just because the transactions go through quicker does not mean the conveyancer is doing less work reviewing and advising on the title information; it is just that the gathering of that information, and the work involved in chasing it up, happens when the property is listed and not when a sale is agreed, so we will still need conveyancing teams.

The CA is firmly of the view that upfront information provision, greater use of digital solutions, etc, can also improve the recruitment and retention of the next generation of conveyancers. So welcome back job satisfaction as we create a positive home moving process for all. That is our opinion based on the facts – anyone is welcome to disagree but you’ll need to provide credible facts to do so.

Now that you have got to the end of the article, I’d like to reiterate what I said at the start. To move this all along, the DPMSG, which does include – amongst others – the CA, the Law Society, Propertymark, UK Finance and RICS, has just launched a new survey for all stakeholders focused on securing views right across the market on the creation of a Digital Property Information Protocol.

This Protocol will be based on the CA’s own Digital Conveyancing Protocol which we launched in the Autumn of 2023 and can be found on our website, and will ‘set out the roles and responsibilities of all stakeholders in the adoption of digital property information and digital solutions across all sectors, ensuring there is better certainty for all involved in the home buying and selling process’.

Needless to say, the views of conveyancers are absolutely vital here, and will go a long way to outlining the roles that should be defined, what the document should be called, why it would be useful, and how it might be used to encourage the greater use of digital processes, plus of course what might be holding firms back and how we might address those concerns and obstacles.

It is anonymous and the survey closes at midnight on the 1^st April, so while you still have a couple of weeks to complete, the sooner you can make your views known the better.

To complete the survey, please click here and we can move a further step down the road to securing a much better process for all conveyancers.