HS2 -High Speed Buying and Selling in Scotland
Is it still on track?
Do the wheels of the Conveyancing Process turn slowly?
Buying and selling your home can be a stressful time and no less so when you have a long period of uncertainty, caught in the no man’s land between offer accepted and deal done.
There was a day when the process of buying and selling in Scotland was hailed as one of the jewels in the Crown of the Scottish Legal System where your word was your bond or, at least when your offer was put in writing through your lawyer, 9 times out of 10 a swift acceptance would follow and that would a binding contract and everyone knew where they stood. We would pour scorn on the unsatisfactory system south of the border, in England, particularly in times of flux, where the pressures of a rising or falling market and the merry dance between offer agreed to contracts exchanged would take weeks and months, with buyers and sellers open to gazumping or gazundering seemingly powerless to cement the deal, and left with the ever present worry that, somewhere along the line, it could all come tumbling down like a house of cards. The longer the chain, the weaker the link and, even with good faith on the part of the principal players, if some party in the process wasn’t playing ball, the conveyancing train would grind to a halt on occasions even before it left the platform!
Do we have a faster, more efficient service in Scotland?
The U.K. Government in response to public pressure is reviewing the house buying process in England and Wales while some IT platforms try to give the impression they have the solution. We may scoff but in practice if not theory are we really that much better with the Scottish system?
In reality the process has been complicated by a number of factors resulting in a similar period of uncertainty between offer and concluded missives. One of the main causes for this has been the time taken to process mortgage applications, with offers conditional on the loan coming good. A mortgage promise is no longer worth the paper it’s written on and conveyancers wisely delay concluding missives until the buyer has the loan in place with the written offer on the lawyer’s desk.
Where the purchaser has a property to sell the offer missives may also be delayed until the sale concludes and the result is that with the exception of straight cash offers very few transactions conclude within 6 weeks from the offer date. Further complications arise in cross-border transactions where a buyer is relying on exchanging contracts. Inevitably, where there is uncertainty, this slows down the process and we end up with a backlog due to a reluctance of some to progress any conveyancing until all the ducks are lined up and there is a binding contract with all the lights at green. As a result, nothing gets done and, like in England, chaos reigns with a last minute rush to get everything in place while the clients are left in the dark, biting their fingernails worried the deal will collapse on occasions railing at the farcical process which has left them exposed waiting on the lawyers to complete procedures frequently in the week days or even hours before cash and keys are exchanged with the deal finally secure.
Some may say that is just the way it has to be.
There are also those in the legal profession who cannot contemplate advising a client to agree to anything that exposes them to risk or even the possibility of losing a deposit. Clearly, backs need to be covered and advisers need to protect clients, and themselves, against the possibility of things going wrong but a no can do sir, jobs worth approach doesn’t do clients or the legal profession any good. It may be the safe approach to do nothing but by sitting on hands or blaming the system, or the “other side” simply adds to the frustration, stress and uncertainty and, inevitably, the affected clients will blame the lawyers. In reality even these days most deals stick and once through the jungle despite the frustrating delays most emerge to the light of a new dawn and achieve house buyers nirvana when they get the house of their dreams of many months before but with a soured experience tainted by the process. It is surely in the interests of the legal profession and our clients to improve on what for many has become a poor experience. Accepting that deals come good in the majority of cases it makes sense to progress and prepare as much of the groundwork to minimise stress and delays further down the line. Clearly it takes two to tango but those conveyancing firms that take a pro active and progressive approach should benefit both their clients and their business so others eventually see the sense of following suit.
Over the years the Scottish Legal Profession has been keen to promote the benefits of our system and introduced practices and procedures that help smoothe the process . Among these has been an almost universal acceptance of a standard set of conditions which are adopted in most formal offers covering the sort of issues that other systems leave for pre contract enquiries thus avoiding delays and flagging up issues with the advice and guidance of the lawyer at the outset so there should be no nasty surprises.
Leaving aside the factors causing delays there is still an underlying principle that you act honourably and do unto others as you would have them do to you.
In Scotland we still have an excellent and efficient system. As a rule, if a client goes back on a commitment and changes tack without justification lawyers in Scotland won’t simply do their instructing client’s bidding and would feel obliged to withdraw and tell them to go elsewhere. The Practice Rules and Guidance Notes laid down by The Law Society of Scotland enshrine noble and time honoured principles but in practice do they hold water.
It is not uncommon to have an offer that fails to disclose a dependant sale. Likewise a conditional offer may be accompanied by expressions of good faith and intent but any attempt to progress missives is given the deaf ear.
Is it not time to address the issue and remind the profession that we are not simply mouthpieces?
We represent and advise clients against an established background of ethics and professional practice that demands respect and an appreciation that others are making plans relying on the offer coming good and uncertainty has a knock on effect. Clients , both buying and selling deserve better service and failing to adhere to high standards and an appreciation of the need to respect the “other side” leads to chaos, uncertainty, frustration and expense both for clients and the profession. Loss of reputation for an individual lawyer or firm is bad enough, but damage to the hard earned reputation that the legal profession has in the eyes of the buying and selling public, could be a huge loss to both the profession and clients and once gone not likely to be restored. Now is the time to get our conveyancing house in order before those in power decide to step in and impose a solution on us. You may think that unlikely but consider the response to consumerism that gave rise to the imposition of Home Reports or the rise of SLCC who are only too happy to entertain any expression of dissatisfaction. If nothing else the administrative cost of dealing with a complaint to that body by a client or an affected third party, which might be a dissatisfied client on the “other side” should be incentive enough to keep most conveyancers on the right side of the track!
Ron Hastings
November 2017
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