Following on from my blog post last week about conveyancing, one particular area causing inherent delay and frustration for buyers or sellers is pre-contract enquiries.
From a seller perspective, having instructed their solicitor, the sellers will be asked to complete a number of pro forma forms with lots of questions about the property and it’s history. The sellers solicitor will almost certainly advise them along the following lines :-
“if you are not sure about an answer, don’t commit, but give as much factual detail as you can if you are able to answer”
The sellers solicitor is in effect warning his or her client(s) about the risk of misrepresentation, which in common sense terms is either not disclosing something relevant in response to a specific question or providing a partial or wholly incorrect answer. Misrepresentation, in legal terms, can also either be negligent or deliberate, in which case it would be fraudulent.
Let’s now turn to the buyer. The basic rule with buying or selling a property is caveat emptor – this is the latin term meaning “buyer beware”. In other words, the seller is not required to voluntarily disclose anything which the buyer does not ask. Consequently, the buyer’s solicitor is put into a situation where he or she must ask lots of questions and to press hard for clarification of answers which are unclear.
Net result of the above is often that :-
- Buyer solicitor receives a lot of standard replies to enquiries which are answered “not to the buyer’s knowledge”
- Buyer solicitor faces predicament – are the answers satisfactory, or are further follow up questions needed to protect client but also to protect him or her from criticism later for not being persistent where answers are equivocal ?
- Buyer and seller get frustrated – why are the lawyers holding things up ?
There is no easy solution to the above problem. A good conveyancing solicitor will make a judgment, based on experience on what’s important in terms of enquiries and replies to them. One advantage of the Conveyancing Quality Scheme, the Law Society specialist accreditation which my firm are members of, is that buyer’s solicitors agree to adopt a protocol for conveyancing which commits them to not raising blanket pre-contract enquiries, although this is still to extent a subjective issues. Many would argue that the system should not be buyer beware and that the seller should be under a duty to disclose everything relevant, but many sellers simply don’t know the answers to questions or have lost paperwork relating to planning, building regulations or maintenance issues for a property.
At the very least, hopefully this post explains that most conveyancing solicitors do not deliberately hold up transactions and are in an awkward position, particularly as a buyers solicitor will invariably also act for the mortgage lender and must be seen to be thorough in investigating even where the buyers may not be concerned about replies given to enquiries.
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