The practice of Conveyancing is synonymous with delays and archaic procedures.
However, even Conveyancing cannot avoid the rate at which technology is evolving. The industry may only be making cautionary ’baby steps’ to increase efficiency and speed within the sector but they are making steps!
Conveyancing used to mean rifling through a pile of stamped, beautifully tied, illegible documents. We are now (largely) dealing with on-line documents, emails and portals. The Land Registry has embraced the digital era to allow electronic registrations and communications and secure digital signatures all to enhance and accelerate the flow of transactions.
Digital conveyancing is not the only step to increasing efficiency, although not a new concept, the latest progression involves supplying a pack of vital information about the property BEFORE a sale is agreed in order to avoid additional enquiries and time lost in preparing information once the sale has been agreed.
Those of us who were around 15 years ago will remember the launch of the ‘Home Information Pack’ which was a pack produced upon the marketing a property and which contained a Sale Statement, property searches, and evidence of title documents. The Home Information Pack also introduced the Energy Performance Certificate into our sale transactions.
The Home Information Pack was scrapped in 2010 due to it being seen as an expensive and unnecessary obstacle in the Conveyancing process at a tough time in the housing market. So, was it right idea, wrong time? Many Estate Agents and Conveyancers appear to agree that a full disclosure system prior to agreeing a sale IS the way forward.
Property Industry Eye reported in December 2022 that Beth Rudolf, the Director of delivery at the Conveyancing Association, believes that preparing an upfront contract pack as early as possible in the sale process could reduce transaction times by 8 -12 weeks. Surely a worthwhile incentive for all sellers to forgo their resistance to paying the initial fees incurred through the preparation of the buyer information pack and to find the time to prepare the lengthy and detailed information sheets.
The upfront package would consist of completed property information forms, the title, an EPC and searches as a minimum but could also incorporate draft indemnity policies for known defects.
The Local Search is often a key suspect in the blame game for delays in the Conveyancing experience. Today’s Conveyancer reported that on average it takes 10 days for a local search to be returned and that the searches are ordered on average 4 – 8 weeks after the Memorandum of Sale! However, the issue with ordering searches in advance of a sale is that searches expire and, of course, some properties take longer to sell or are more difficult to sell than others, meaning the information supplied in the initial pack can become outdated or redundant. This is the major downside to the upfront buyer’s information pack – ‘unnecessary’ expense to the seller before a sale has even been agreed. Further, some sellers are only marketing their property because they are in financial difficulty and will therefore be highly resistant to paying for searches and title documents before they have any guarantee of a sale.
By Consumer Protection Laws Estate Agents are already bound to include certain information in their sales particulars. However, The National Trading Standards Estate and Letting Agents Team want to embellish this information and announced plans in February last year to introduce a three-part disclosure system (Parts A. B and C). Part A, which has been implemented, requires the sale price, rent payable, tenure and Council tax band to be available to any prospective buyer (the ‘unavoidable costs’ associated with the property). Parts B and C are likely to be implemented together and will include such features as broadband speed, mobile phone signal and restrictive covenants affecting the property.
The legal form which is intended to tie the information together in a neat ready to market package is The Buyer’s and Seller’s Property Information or BASPI form. This was launched by the Home Buying & Selling Group (HBSG) in order to increase the efficiency of conveyancing transactions.
The BASPI Form is split into two sections being Section A covering the Material Facts required under the Consumer Protection from Unfair Trading Regulations, and Section B covering the remainder of the Conveyancing Due Diligence.
Part A contains details in relation to the fixtures and fittings, property rights, disputes and alterations.
Part B covers services, energy, guarantees, indemnity policies and legal boundaries.
The new BASPI form also asks whether the seller has a digital Property Logbook for the property being sold. A new concept for many, but potentially a key player in the future, the digital logbook allows homeowners to retain records of any digital certificates, service paperwork from engineers or contractors or documents to satisfy statutory requirements for Landlords in one document stored under a unique property reference.
Some practitioners have asked how/if the BASPI will be accepted within the Law Society protocol. In October 2021, the Law Society reported that they were assessing BASPI’s equivalence to the TA6 (Property Information Form) for Conveyancing Quality Scheme (CQS) purposes and that they would issue an update to members on the assessment outcome. It appears that we are still waiting on this but, once the BASPI has been assessed as equivalent, CQS members may use it instead of the TA6 Property Information Form.
Kate Faulkner, Chair of the Home Buying & Selling Group HBSG has stated:-
“The BASPI together with the Pledge recommending sellers instruct legal companies on day one of marketing can go a long way to improving the home moving process for consumers and also for the daily lives of those in the industry.”
James Munro, Senior Manager of the National Trading Standards Estate and Letting Agency Teams, said:
“We welcome the launch of the new version of the BASPI, a brilliant example of industry pulling together to make things better for everyone involved in the conveyancing process. This new form will make it even easier for agents to provide the required material information when marketing a property, which will lead to fewer unnecessary enquiries, swifter sales and increased consumer confidence in the industry”.
James Munro Senior Manager of the National Trading Standards Estate and Letting Agency Teams refers to ‘industry pulling together’ in his quotation above. The worlds of estate agents and solicitors often collide but upfront sale packs blur the lines even further. It is difficult to ascertain whether this will strengthen bonds or create confusion over roles. The estate agent will be presenting the packs to potential buyers on marketing the property but who will provide answers to any buyer queries? First port of call is likely to be the estate agents who may believe that they can resolve the query but perhaps don’t have the full legal knowledge to answer all enquiries. It’s an issue that would need to be dealt with carefully as conveyancers are unlikely to be wanting to (and unable to allocate the time to) deal with ALL enquiries from the pack which could include basic queries. On the flipside, it is dangerous for an unqualified party to advise on a legal issue that has been raised.
Although practically the idea of a ‘sale ready’ property package is the ideal, would an upfront package of information, ‘warts and all’ take away the romanticism of buying a house? Rather than more sales going the distance and less sales aborting it could create a market where less buyers even begin the transaction once they have been presented with the cold hard facts of the buyer’s information pack. Instead of being carried through the conveyancing process by their love for their ‘forever home’ and dealing with the property’s more problematic features as they arose, they could be put off at the first hurdle.
It will be interesting to track the progress and gauge the acceptance of the BASPI and the complementary upfront property package with practitioners, lenders, estate agents and the public in what appears to be more turbulent times in the housing market.
