Who are our competitors - and which worry us?

As "High Street" solicitors, who tend to handle local work for local people, it might be thought that our main competitors are other, similar "High Street" solicitors - I think not

Although there is competition between us and other local firms, we do not see them as an existential threat (oooh! Big words!) On the whole, they tend to have the same philosophy of business as us: do a good job, at a reasonable price, resulting in a satisfied client and a good reputation and more referral business.

To date, a bigger threat has come from those firms, big and small, that indulge in cut-price conveyancing: always ready to undercut the competition - after all, it must be better to discount by (another) £50 and get the work than not, right? Wrong! Cut price conveyancing is bad for everyone involved - even those paying full price further up or down the chain of transactions - as it leads to a "stack it high and sell it cheap" approach, which quickly becomes de-personalised (commoditised) and inefficient. A similar problem results from conveyancers who pay referral fees to buy in work - but that's for another blogpost.

However, a bigger threat still is nearly upon us: "Alternative Business Structures" in the jargoin of the regulators and, especially, non-lawyers being allowed to do conveyancing work for profit. The real threat - to existing practices - is that some big organisations - insurers, "service commoditisers", mortgage lenders, etc, will offer conveyancing services. Not only will they be the ultimate in "pile it high and sell it cheap" but they will have the resources to put in place systems that will far outstrip even the "warehouse conveyancers" of today.

Worst of all, many of them - mortgage lenders are the obvious example - will be able in effect to offer the conveyancing for free: either bundling the cost in with the overall mortgage loan or treating it as a loss leader to get and retain the lending business - and the associated financial services, where lots of money can be made.

How to compete? Well, trying to beat them at their own game will not work, as I simply do not have the financial resources. In order to compete, I need to sell my services to clients on the basis of value for money - not cheapness; genuine efficiency - not artificial busy-ness; local, useful knowledge - not a tick-box approach; and genuine approachability - not slick advertising.

That is why I -

• offer a money-back guarantee
• constantly update my office procedures and support IT
• am closely involved in my local community
• encourage clients to drop in to my office, without appointments, to speak to my conveyancing managers about anything that concerns them: if it is a legal issue, it will be referred to a lawyer, but for procedural or incidental queries, my managers are well able to cope

Free e-books and audio books

My sources for free e-books and audiobooks are -

Project Gutenberg:

Google E-bookstore

Internet Archive

Open Library

Many Books

LibriVox (audiobooks)

Can anyone suggest any more?

PS: I omitted one of my favourites: Memoware

New conveyancing protocol

According to Clutton Cox, they were one of only 12 firms to respond to the consultation by the Law Society on its new conveyancing protocol: http://goo.gl/uhpYh

As I also responded, that means only 10 others throughout the country did - what a disappointment

What is also disappointing is that the Law Society has not included in the scheme a requirement for member firms to (for instance) adopt the Law Society's Code for Completion by Post - and a lot do not seem to know what the Code says, but decline to adopt it anyway - nor to update their repetitive raft of property information forms so as to produce a single, well-drafted form for clients to complete

Instead, they are duplicating some of the supervisory functions of the Solicitors Regulation Authority and concentrating on telling lenders, insurers and anyone that will listen that a good conveyancer should be part of the scheme - despite the fact that it is only open to solicitors, not licensed conveyancers. Presumably this is to get lenders and insurers to insist on firms joining if they are to be on lenders' panels and get insurance cover, thus ensuring jobs for those at the Law Society with no improvement in efficiency or protection for the benefit of clients

Ahhh! What it is to be so cynical!

Turmoil for the legal profession

The legal profession is undergoing a period of change and review more far-reaching than anything it has experienced before. The following consultations (which will lead to change) and already decided changes are under way (thanks to Rob Hailstone of the Bold Group for drawing all this together) -

SRA Consultations: The new SRA Handbook: This consultation is the last opportunity for comments on the SRA's new Handbook which will underpin the regulation of solicitors and law firms from October 2011. This paper provides more detail on the regulatory framework for both traditional law firms and Alternative Business Structures. Ends - 13 January 2011

Future Client Financial Protection arrangements: Comments are invited on proposals for amendments to client financial protection arrangements from October 2011. These proposals follow on from the independent review of the current client financial protection arrangements undertaken for us by Charles River Associates. Ends - 28 February 2011

Sole Practice: Modernising Authorisation: The proposal is to bring the process for authorising sole practitioner law firms in line with the way in which all other firms will be authorised. Ends—8 March 2011

Legal Services Board Consultations: Referral fees, referral arrangements and fee sharing: Ends – 22nd December 2010

ABS (Alternative Business Structures for providing legal services) consultation - Further rules regarding licensed bodies: Ends - 21st February 2011

Ministry of Justice PII: Proposals for the Reform of Legal Aid in England and Wales: This consultation seeks views on proposals for reform of legal aid in England and Wales. One option is to use client account interest to help bolster the Legal Aid Fund. Ends – 14th February 2011

The Law Society PII Guide: The fourth edition of Insurance Matters, a free bulletin on solicitors' professional indemnity insurance (PII), can be downloaded: http://www.lawsociety.org.uk/new/documents/2010/insurancematters4.pdf - It includes articles on the outcome of the 2010 renewal process, conveyancing fraud, and risk management.

Changes to the CML Lenders' Handbook
The Council of Mortgage Lenders updated the Lenders' Handbook on 1 December: The changes affecting solicitors include:
• new requirements where the solicitor acting for the lender is not familiar with the seller's solicitors
• lenders can stipulate whether they require notification of the name and address of the sellers
http://www.cml.org.uk/cml/handbook/amendments

Lawyers need to be ready for this future. Whether it is an improvement remains to be seen

Deep and crisp and even

I cannot let the snowfall pass without at least one blog

There was plenty of snow overnight, resulting in a good 5 or 6 inches on the ground this morning. Though the side roads have been ploughed overnight, I do not expect any of my staff who drive to work to get in. That leaves Anne (my wife and office manager) and me, who both walk to work, to staff the office today.

That's not a problem: with no post or Document Exchange deliveries (it's the snow, you know), we are only dealing with phone calls and emails - and catching up on "back office" stuff such as planning my new website - details soon - and revising my terms of business

However, I was a tad upset when Anne commented, "It's lucky we can walk to work" - It's not luck: we planned for this; it's why we moved office from Cranbrook to Tenterden: so we do not have to use the car daily and so we can walk to work!

I love it when a plan comes together - but I'm looking forward to things getting back to normal

A word of warning

Negotiating on legal fees - a word of warning.

For the lawyer, the actual fees are only a small part of the relationship. More important, usually, is the lawyer's perception of the value the client places on his or her services. If the lawyer feels undervalued, they will be demotivated and therefore less efficient.

Don't negotiate resentment into the relationship!

Quality standards?

Research by the Consumer Panel - which advises the Legal Services Board, the regulator of lawyers - finds that "consumers assume all lawyers are technically competent and are subject to more regulatory controls than is the case. This means that quality considerations do not strongly influence consumers' choice of lawyers and people erroneously consider that all legal services are of proven standard."

Apparently, despite a proliferation of quality badges for lawyers, consumers do not use or want quality marks in legal services.

The LSB's reaction to this seems to be to propose yet another layer of regulation for an already heavily regulated sector.

Seems to me it would be better to educate the public that all lawyers are *not* the same - some are better than others, and it is better to make a choice based on experience or a genuine informed recommendation - rather than taking up the referral from the estate agent who is paid by the lawyer to make that referral

Still, I know I am a voice crying in the wilderness. Why on earth should a regulatory body resist the urge to gather more work to itself? It makes one wonder, though ...

Another HomeMove forum query

In case it is of general interest, here is another query, and my reply, on the homemove.co.uk legal forum

The query:

Please help! conversion of house to flats and existing mortgage lender rules

Hello,

I'm tied in for 2 years into existing 230k mortgage on a house valued at 500k. Repayment penalty of 5%. That I've come to terms with.

I am getting planning permission to make into two flats to sell flat 1 and live in flat 2. Flat 1 worth 280k on sale and flat 2 worth 350k.

Therefore I pay off my mortgage or keep or take out a small one. I have a loan from my parents for the conversion.

Problem is I've found out I should tell my mortgage company. It says any building work have to tell. When should I and Will they say no? Presumably on making a lease the mortgage company finds out anyway on release of title deeds. I won't have the capital to pay off existing loan till sale and also very wary of idea of bridging loan at high interest rates.

Worried if I go ahead and build then the mortgage company might cause me problems. Is there any negotiation I can do? When I speak to my conveyancing solicitor what should he do? He suggested writing to my company but I'm worried it'll write off my plans completely.

The whole idea is on sale of the flat I'll pay off mortgage anyway and already face a big redemption penalty anyway. They will make 10k from me on redemption penalty.

What do I do? Any advice???

Please help.

My reply:

There are two aspects here -

1: It is likely that, if the lender does agree to you carrying out the work, it will convert your loan to a commercial (higher) interest rate and may charge an arrangement fee and re-valuation fee; it really depends on the lender

2: The lender will be worried at the risk that, partway through the conversion, you run out of money and leave the job incomplete, devaluing the property as a whole - that is the usual reason for a blank refusal. The lender is more likely to agree to the project if you can demonstrate that you have planned and costed it professionally and that the work will be supervised properly. You will need inspections under the Building Regulations anyway. I suggest that, rather than get the local council to do these inspections, you employ an "approved inspector" to oversee the project as a whole as well as dealing with the Building Regs inspections.

Before you do anything, though, try to speak to someone sufficiently high up at your lender's to explain your plans and find out whether they might agree and, if they migght, what information, paperwork, etc, they want to be able to consider it properly

Online advice

I contribute to an online advice forum at http://www.homemove.co.uk

A query that (to me, at least) was quite interesting cropped up today, regarding a breach of a restrictive covenant.

The query itself was:
"We purchased a converted barn 2 years ago and the developer (who also lived next door) suggested that we get a garden room extension when I said I wouldn't buy it as I wanted more room! We decided to do just that and got the necessary planning permission but have uncovered in the past few weeks that there is a restrictive covenant on the property for 5 years. Unfortunately, the developer has since moved away leaving no forwarding addresses (as we believe she is in debt) however she was the one to initally mention the extension PLUS she phoned to congratulate us on getting the permission AND she even wanted to quote for the business! Our solicitor made it out that it would be best to try to contact her which we have done via her solicitor. We know she has the letter but has not bothered to respond either way! She is reknowned for her lack of business acumen! We have just been told by our solicitor that we cannot even get an indemnity now because (we did what we were originally told was the "right thing") we have made contact with her. Is there anyway out of this mess? Surely, we must have recourse in some way that she cannot simply abstain from an answer? And given that we have verbal confirmation from her, can we rely on anything here? It would be greatly appreciated if anyone can help!! Thanks."

My reply was:
"I assume that it is the developer who has the benefit of the restrictive covenant, and the problem you have is that you are now trying to sell the property and the buyer is seeking evidence of compliance with the covenant in the form of a consent/release from the developer

"If so, I suggest you make a "statutory declaration", detailing exactly what happened, and detailiung the various ways in which the developer encouraged you to build the extension, knew of it and did not object and has failed to respond to correspondence.

"The point is that a court will not enforce a restrictive covenant if the person entitled to enforce it has connived in its breach, nor if they have simply sat back and done nothing in the knowledge that it is about to be or has been breached - the person with the benefit of the right musdt act reasonable promptly to enforce it - this is under the equitable doctrine of "laches" - the Wikipedia entery on this is very useful: Laches (equity) - Wikipedia, the free encyclopedia

"A sufficiently clear statutory declaration should be sufficient comfort to a buyer to enable them to proceed despite the apparent breach of covenant"

Whether my suggested solution will succeed or not, I cannot say, but at least it offers somed light at the end of the tunnel

Let us Tentertain you

Tentertainment is back! On Friday (evening) 2 July plus (all day) Saturday 3 and Sunday 4 July at the recreation ground in Tenterden, Kent (TN30)

It's Tenterden's free festival weekend with (new this year) a jazz orchestra on the Friday evening

Full details at www.tentertainment.org

We was wrong!

Despite earlier confident predictions, Home Information Packs have been suspended with immediate effect - see here

Home Information Packs - the latest

Thanks to Rob Hailstone of the Bold Group for this:

What is the Current Position?

HIPs have not been scrapped by the Election result. The law still requires a HIP to be in place to market a property. The penalties for non-compliance still apply.

Grant Shapps (the new Housing Minister), has said he will not condone non-compliance by Estate Agents who fail to order HIPs

Grant Shapps has committed to a full industry consultation before scrapping HIPs

The Coalition Agreement refers to scrapping HIPs in the Environment section suggesting more consideration has been given to this topic

Unless a suspension order for the scrapping of HIPs is announced HIPs will remain in place for the foreseeable future. Legislation to adapt or replace them will take some time to pass in Parliament

What Happens Next?

* The new Parliament will be sworn in next week from 18th May. The first Queen’s Speech setting out the initial legislative programme is expected to be held on 25th May. An Emergency Budget will be presented to the House in the first 50 days of the new Parliament and debates on its contents will dominate the initial period before the Summer recess

* The first parliamentary session will run from the end of May to November 2011 (which is the date of the next Queen’s Speech). This means that the Coalition Government has a longer time than normal to get legislation through the Houses of Parliament. This will allow a larger volume of legislation to be passed, particularly as there is a Parliamentary convention that the Lords will not oppose legislation based on a Manifesto Commitment. Ministers are likely to exploit these two factors to pass the complicated and potentially controversial legislation they believe to be necessary.

* We are unlikely to get significantly more detail on how the pledge to scrap HIPs will be taken forward when the Queen’s Speech is published – if indeed it does form part of the initial legislative package. The Speech itself is often little more than a statement of intent and many of the Bills listed in it may not be published until after the summer recess.

* The Conservatives have pledged a consultation on transition and any successive legal framework. It is unlikely that this will be reversed, especially as David Cameron and Nick Clegg have pledged to restore the public’s faith in politicians.

* The pledge on HIPs is unsurprising – it was a commitment delivered in both Parties’ Election Manifestos. The Agreement provides no additional detail on how this will be achieved or delivered. The inclusion of it in the Environment section rather than under deregulation is perhaps significant. It suggests that there is an understanding that scrapping HIPs cannot be undertaken in isolation. It has also been decoupled from the Great Repeal Bill – which has already been flagged as being a very early Bill to be introduced to Parliament ahead of the summer recess.

* The Conservatives have pledged a consultation on transition and any successive legal framework. As David Cameron and Nick Clegg have pledged to restore the public’s trust in politicians it would be a breach of faith if this was reversed.

Rob Hailstone
The Bold Group
www.theboldgroup.co.uk

Home Information Packs - again

With the Conservatives and Liberal Democrats "promising" to abolish HIPs, it may instead be worth considering whether they can be improved to make them good value for money.

The recurrent problem we are experiencing at present is the delay in getting searches. We get sent a lot of incomplete HIPs, then have to keep checking to see whether searches are added. This seems to be because of the same old problem: selling down to a price, rather than up to a standard, and getting personal searches (as cheaper) rather than official ones. To my mind, this makes no sense: on the one hand, people get what they pay for and a cheap personal search is likely to be full of errors and omissions; on the other hand, most official searches are (a) speedy - speedier than cheap personal ones, certainly - and usually not very expensive. On the rare occasions we get asked to prepare a HIP, we always recommend official searches, in an effort to make them as exchange-ready as possible

On a related aspect, many properties have more than one registered title, yet this seems to astonish amateurish HIP providers - I was having great difficulty explaining to one such earlier this week that my client's access and courtyard was in a different title to the house and, yes, both titles were essential

The single best thing that could be done to improve HIPs would be to require them to include a draft contract (omitting the price and buyer's details, of course) and a full property details questionnaire. This would make them virtually exchange-ready and would have the extra benefit of removing the need for the sale statement and the almost-useless property information questionnaire.


This will not happen yet, of course, as it would mean only solicitors and licensed conveyancers could prepare the contract part, though this should change next year, and there will never be agreement on what the PDQ should contain - unless the government actually thinks it worthwhile consulting the people who know: property professionals

Terms and conditions appy

Sometimes, it can be very difficult to get clients to cooperate in their own interests. This dialogue from 'The Girl Who Kicked The Hornets' Nest' by Stieg Larsson sets out the very basics:

Lawyer: "Here are my conditions. I agree to represent you. When I need to get hold of you I want you to answer. When I need to know what you want me to do, I want clear answers. If I call you and tell you that you have to [do something], then I have already decided that it is necessary. You will have to [do it] and not make a fuss about it. Can you live with that?"
Client: "I can"
Lawyer: "And if you start playing up, I stop being your lawyer. Understood?"

It's basic stuff, but all too many clients just don't get it

- Justin (Nelson)

Another client testimonial

From a genuine (and genuinely happy) client:
"Many thanks for all your excellent work and professionalism, we both are grateful, having the confidence in you at all times, knowing that we would always receive accurate,honest and thoughtful advice. I'm certain we will be using your services in the future in whatever circumstances may occur. I just wish that banks worked to your standards."

Even disappointed clients are happy!

Even though their house sale fell through because their buyer's conveyancer insisted, wrongly, that the legal title was defective, our clients have been very complimentary about our service, saying -

"I just wanted to say a very special thank you to both you and Justin for the professional service and genuine support and understanding you have given us over the past months. Having not moved for 25 years, and no real need to instruct solicitors over that time, you made the process clear and provided outstanding service to us. Despite the outcome, which was clearly out of everyones hands, you never gave up and that was greatly appreciated. I would have no hesitation in recommending your services, you do a wonderful job and conduct a very professional business."

It is nice to be appreciated!

Test via Facebook

something

Love thy neighbour?

For all the legal and physical investigations a homebuyer can do, nothing beats checking on the neighbours - http://bit.ly/aPmuOG

Seriously: if your home is to be your sanctuary, you need good neighbours. Like family (unlike friends), you cannot choose them - existing neighbours may be replaced by new ones. However, before you buy a new home., check on the neighbours - and if you are buying a flat, the most important neighbours are those who live above you, not those on either side

Tenterden Pudding Club

Once a month (on the last Friday in each month), various Tenterden-based professionals and business people (solicitors, accountants, estate agents, IFAs, telecom consultants, bank managers, insurance brokers, etc) get together for an informal, single-course lunch and a bit of networking

There is no need to commit to attending (nor to apologise if you cannot attend), but if you are in business in Tenterden and would like to be added to the email reminder list, let me know: send me an email at jn@justinnelson.co.uk

Rush Witt & Wilson return to Tenterden

Rush Witt & Wilson are estate agents with offices in Battle, Rye, Hastings, Bexhill and St Leonards. They did also open an office in Tenterden, but closed it when the economy went down the tubes

In what may be a sign that the economy (or, at least, the local housing market) is improving, I hear they are re-opening their Tenterden office on Saturday 3 April - you can even enter a free draw for a balloon ride, dinner at Richard Phillips at Chapel Down, guided tour of Chapel Down vineyard or a ride on the Kent & East Sussex Railway

Just testing Twitter feed

Always learning, always improving

I spent all of today on a conveyancing CPD (continuous professional development) course in Tunbridge Wells.

While most of the content was not new, it provided a forum for some interesting discussions with other solicitors about practices, procedures and attitudes to risk - and about "clients from hell"!

It also left me with about a dozen possible improvements to make to paperwork and procedures - life is a constant process of improvement, which I currently welcome, but I wonder how soon I will become demotivated (as many lawyers I know) and cannot find the enthusiasm to change

The majority of those attending feel Home Information Packs to be a waste of time and money, but I still feel that, done well, they help the conveyancing process significantly

"Tragedy at Law" by Cyril Hare

Just finished reading this - on the advice of P D James, no less - "Written with elegance and wit" - and thoroughly enjoyed it

Not a thriller, but a "whodunnit - and why?" it is truly elegant and quite captivating. A detailed account of a near closed room mystery with a legal background and well-described characters, the outcome is both surprising an satisfying.

I thoroughly recommend it to anyone who wants a slightly intellectually-demanding crime novel: light enough to be read for pure pleasure, but deep enough to be satisfying

A five star mystery, IMHO

Small town delights (number 99 in an infinite series)

This morning, while shopping in Tenterden with my daughter, I was approached by a postman in Waitrose with a recorded delivery letter that he had tried to deliver to my home earlier.

He had left the usual card, so that I could collect the item from the sorting office. However, seeing me go into Waitrose, he followed, and I was able to take and sign for the item there.

That's what I call service!

Top tips for 2010

In the Law Society Property Section magazine for this month, 11 members of the section's executive committee gave their top tips on how to prosper in the new decade

Almost all of them were very good, but almost all of them were steps, attitudes and procedures we at Nelsons Property Lawyers had adopted from Day 1 - we are looking for ways to imprive beyond these relatively basic client care ideas

If you have any suggestions as to how we can improve client care, we'd love to hear them!

Money laundering

Though conveyancers have been at the sharp end of money laundering activity to date, it seems that litigators are now being targeted as well

Until now, it was thought that litigation was a less fertile area for laundering the proceeds of crime than conveyancing was: fraudsters had been setting up spurious property transactions in order to launder money, while litigation was considered a less risky area of law

Because conveyancers have become more and more strict over their anti-money laundering procedures, the criminals are apparently now setting up spurious debt collection and similar claims, in order to launder their money through lawyers' firms

As a result, litigation solicitors will need to be as alert as conveyancers have become, to spot signs of suspicious activities and report them where appropriate

How soon will this apply to probate and matrimonial lawyers, too?

April Fool giveaway

It's my birthday in April, so I'm giving a 10% discount on all new legal work where I receive (and accept)instructions in April 2010 - you need to quote "promo code April Fool" when giving the instructions (on the authority form, in the case of new clients) in order to qualify, so don't forget

Another school governor monitoring visit

I have carried out another monitoring visit, this time focusing on "Community Cohesion", which is a formal way of saying, "We all have to get along together, so play nicely" - I understate for effect, of course, but it does seem to require a lot of input for something that, in 90% of schools, must be taught and experienced automatically anyway. Ah, well, it ticks some boxes ...

School monitoring visit

In my capacity as a governor of the Infant School in Tenterden, I today paid a monitoring visit to the school

It is always a delight visiting the school: all the children are well-behaved, happy and hard-working, and they really seem to thrive in the school's positive atmosphere; It makes me quite proud to be a small part of that success

My visit focused on the "drop-off club" in the mornings - which allows parents to drop off their children for supervised play before school normally starts, so that the parents can get off to work or whatever - and the role of the newly-appointed Family Liaison Officer. Both are aspects of the "Extended Schools" initiative, which tries to get schools more closely involved in their local communities.

On the basis of my visit today, both the drop-off club and the FLO are valued by parents, and (certainly in the case of the drop-off club) by the children who took part as well.

Yet more evidence, if needed, that the school is very successful

Tenterden accountants get it together

Two firms of accoutants with offices in Tenterden are to merge with effect from April Fools' Day (1 April 2010)

Phipps & Co, who also have offices in Rye, will merge with Gibbons Mannington, who also have offices in Rye (and in Bexhill as well)

As Phipps & Co have only relatively recently returned to Tenterden, re-absorbing the Day Peto & Co practice that had previously spun off from them, this merger seems to indicate that they are actively managing their future - as one would expect from good accountants!

Good luck to them in their latest phase of development

Computer screens should be at eye level? - not necessarily

One of the good results of my routine eye test today is a return to a comfortable working environment

About a year ago, a health and safety expert berated me for having my computer screen below eye level - bad for my posture, apparently

Trustingly, I put the screen on a stand and suffered the up-and-down head motion of non-touch typing and screen checking.

On the basis of advice today, bearing in mind that I have specs with vari-focal lenses, I have removed the stand - and things are soooo much better

I can now type and read the screen without too much effort and hope that I will be less tired at the end of the working day

Moral: the H&S experts do not know everything

Referral fees - are they actively destructive?

We are currently finding the firms that rely heavily on estate agent referrals are incredibly slow - it can take literally weeks to get a draft contract out of them, and on more than one occasion we have offered to draft the contract for them, based on the information in the Home Information Packs

Assuming they are not being lazy or incredibly incompentent (though ... - no, don't go there!) I can only think they are victims of their own successful marketing; in other words, that the referring agents are so keen to get a couple of hundred quid referral fee - guaranteed and, presumably, up front - that they would rather refer the case to someone who does not actually have the resources to handle the work, rather than lose the referral fee

How this can conceivably be in the best interests of their client, the seller, is beyond me. It is also not in the interests of the buyer or the housing market generally

If (and it is a big "If") my limited, recent experience is widespread, and if (another big "If") the reason is as I have surmised, this, surely, provides very strong support for those who wish to ban referral fees, at least where they are being used in such an unsophisticated way as to distort the whole market

Have any other conveyancers had similar experiences?

"Before you go, could you just ...?"

I am away on holiday next week. Madeira, since you ask; yes, I hear it is quite pleasant, though I have not been before

Anyway, I made the mistake of telling my clients, and all day I have taken calls along the lines of, "Oh, you remember that draft Will/shareholders' agreement/ lease/whatever that you sent us six (or more weeks ago? Well, we haven't actually looked at it but we're sure its great. Could you just engross it and send it to us to sign with a fresh explanation of what it says before you go away?"

Stiving to remain polite, I agree to do what I can, with the result that

(a) I will spend most of this weekend at work

(b) I will not finish all the sudden influx of work

(c) I will go on holiday exhausted and collapse for most of it

(d) I will return to a pile of work

(e) Most of what I do send out will get left for another 6 weeks (or more)

Hey, ho: happy holidays! (Bah! Humbug!)

Chancel repairs liability

Having had to carry out a little extra research than normal into this topic, I thought I'd share the results by gathering together various links on the subject

For background information, Wikipedia has an accurate, if brief entry.

Other authoritative information is available from the church, and a Times Online article

The report on the Wallbank court case that brought this "new" risk to conveyancers' attention is a useful read - though it should be noted that the original repairs costs were relatively small; the Wallbanks built up a huge legal bill by fighting the claim tooth and nail

More detailed information is available from commercial websites but bear in mind that they have a vested interest in promoting their insurance policies

Powers of attorney

Ordinary powers of attorney

An ordinary power of attorney gives someone (the attorney) the power to act on behalf of someone else (the donor) subject to any restrictions or conditions contained in the power of attorney. A general power of attorney gives the attorney power over all of the donor’s affairs, except where the donor is a trustee and a trustee power of attorney is required.

The problem with any ordinary power of attorney (whether general, trustee, or otherwise) is that it is only effective for so long as the donor is both alive and mentally capable of managing their own affairs. If they die, then (as with all other types of powers of attorney) the authority granted to the attorney under the power ceases. Also, if the donor becomes mentally incapable of managing their own affairs, the authority granted to the attorney under an ordinary power of attorney ceases.

Enduring powers of attorney

Enduring powers of attorney can no longer be made, but could be made up to October 2007. If made before that date, then the distinction between them and an ordinary power of attorney is that, even if the donor became mentally incapable, the attorney could still continue to act under the power of attorney, provided the attorney registered the enduring power of attorney at the Public Guardian’s Office. Until that point, the power of attorney operated as an ordinary power of attorney, but provided it was in the correct form and granted before October 2007, its effectiveness could “endure” beyond the donor’s mental incapacity, subject to the power being registered.

Lasting powers of attorney

From October 2007 onwards, the replacement for an enduring power of attorney is a lasting power of attorney. This is a longer document that the enduring power of attorney was and therefore takes longer to complete, but is reasonably straightforward. The prescribed forms can be downloaded from the Public Guardian’s website at www.publicguardian.gov.uk

There are two types of lasting power of attorney, with separate forms for each – one for “property and financial affairs” and another for “health and welfare”. This is because one might want different people as attorneys for these different aspects, but it does mean doubling up on the form-filling and on the registration fees.

Once granted, a lasting power of attorney is not effective (even as an ordinary power of attorney) unless and until it is registered at the Public Guardian’s Office – the form to apply for registration can be downloaded from the same website.

I strongly recommend everyone to grant a lasting power of attorney, certainly to their spouse/civil partner and possibly (depending on age and family circumstances) to some or all of their children.

Whilst I am happy to help in preparing a lasting power of attorney, most people would be able to complete the prescribed form perfectly well themselves. I can, perhaps, be more useful in registering a lasting power of attorney but again the forms for this are fairly straightforward and do not require specialist legal advice.

Home Information Packs - yet again

With a general election looming, the Conservatives are consulting various interested parties on what to do about HIPs - abolish then, improve them or leave them as they are?

My view is that, if done properly, a HIP can be a very good way of speeding up the house buying and selling process. The problem is that most sellers get a HIP because they must, and buy as cheaply as they can, instead of buying the best they can.

HIPs should be tightened up, not watered down

Property theft

Properties can be stolen: if a fraudster is able to convince the Land Registry that they are the property owner, they can sell - or more likely - mortgage the property and disappear with the proceeds before you are aware anything is wrong. In the case of a mortgage, this might not be until the mortgage lender tries to take possession for non-payment of the mortgage instalments, at which point you would have to prove that you did not sign the mortgage deed that purports to be signed by you.

Properties that are subject to a genuine mortgage are far less vulnerable, as that mortgage would normally need to be cleared off, putting another hurdle in the way of any attempted fraud. However, properties that are free of mortgage are much more susceptible.

The Land Registry’s own identity checks are not very rigorous, relying on either one piece of photographic ID or two utility bills or bank statements, for instance. Though the conveyancer acting for the seller or mortgagee can be expected to check their client’s identity, it is not unheard of for conveyancers to be - deliberately or unwittingly - party to the fraud.

The Land Registry recommends proprietors give multiple addresses for themselves in the register (including an email address, if desired) to help protect against fraud. However, this does nothing at all to combat property theft, as the Land Registry does not check with the registered proprietor that the mortgage deed or transfer has, indeed, been signed by them.

The Land Registry also suggests registering a restriction in the register, requiring a conveyancer to certify that the person who signed the mortgage or transfer that is being registered is indeed the registered proprietor. However, this is really no more than the existing Land Registry requirement of confirmation that the parties to the transaction have all been identity-checked and, in any event, does not cover the situation where a conveyancer is involved in or deceived by the fraud.

The only protective measure we have been able to come up with is to register a restriction on the property’s Land Registry registers, requiring the consent of a third party who is not an owner of the property before the owner (or someone who purports to be the owner) can mortgage or sell it. This third party could be a trusted family member, solicitor or accountant, for instance. If you adopt this suggestion, we strongly suggest that there should be a document (which we can prepare) whereby the third party confirms they have no beneficial interest in the property but is merely acting as a guardian against property theft.

There is a risk of the third party dying, becoming mentally incapable or simply falling out with you. If the third party is a solicitor, chartered accountant or similar, their professional obligations mean that your position would be protected. However, this is not the case with a private individual, so you should think carefully before appointing a private individual to this role.

If you would like to take this idea forward, please speak to us about what arrangements would be appropriate for you.

Speedy service

Even for ex-clients, we offer a speedy service

We acted when husband and wife bought a house together in 2006. They are splitting up, and he does not want to use us as we have acted for her on various transactions over the past few years. They have therefore gone to a "neutral" firm to handle the sale of the house.

This morning, we received an email from the wife, asking for a particular piece of information from our purchase file. We emailed this to her by about 10am, and have just heard back:

"Thanks so much for the speedy reply. I've just dropped it off at the solicitor's and they couldn't believe it!"

It's nice to be appreciated, even (especially) when we don't get paid

What does Google have to do with referral fees?

"You don't buy it with ads [or referral fees]. You earn it, and you earn it customer by customer, search for search, answer by answer." - Eric Schmidt of Google on Fox Business News in 2009

Despite that comment, Google chose to advertise during the televising of the Super Bowl on 7 February, so perhaps people's views, or circumstances, or both, change

Until very recently, I was adamantly against paying (or receiving) referral fees for getting (or giving) work opportunities - the only effect seemed to be to increase costs to the consumer (or reduce profits to the service provider). This still seems to me to be the case in respect of residential conveyancing: some agents are keener to earn their £125 referral fee than to ensure that the conveyancing work is handled properly. In my view, this is very short-sighted, but there we are, at present.

However, I have just joined two organisations that are, in effect and in part, referral organisations: Quality Solicitors, to whom I pay an annual subscription for marketing and referrals, and Contact Law, to whom I pay a percentage of my fees on cases referred to me by them. In both cases, this means that I get referred to me transactions that are within my target market for commercial transactions and which I would very probably not get a chance to pitch for otherwise.

In addition, some of the larger local firms are actively courting - and offering to pay for - referrals from me in respect of work I would not handle myself. This is effective marketing for them and I would not refer unless I felt it appropriate for the client. However, while I would welcome an additional income stream, I still feel a residual reluctance to "taint" a referral in this way.

The difference is, perhaps, subtle: I make it clear to prospective clients who are referred that I have an arrangement with the referring organisation, that I pay them a fee (an annual subscription or a percentage of fees charged to the client) and that the client has a choice whether to instruct me or not. Equally, I would not refer a client to a firm I did not think was right for them. I do not think many estate agents do the same; indeed, I know of several who say or imply that the prospective client must use their "panel solicitors" if they are to sell or buy through them, even when they indicate that they already have solicitors they are happy with.

I do have some concerns over my existing arrangements. I discovered, for instance, that a prospective client was recommended to me by her accountant but, when she phoned directory enquiries to get my telephone number, they insisted on putting her through to Quality Solicitors (on a premium rate line) instead. I have raised this with Quality Solicitors, and they have assured me they will stop that practice - which they had not themselves instigated: that was the idea of the particular directory enquiries service.

The public interest argument in favour of referral fees is that it provides a service to the public who do not know what solicitors might cover their particular needs and can go to a service that, in theory, can identify an appropriate solicitor. Unfortunately, greed will inevitably taint the operation: the desire to earn the referral fee is likely to discourage referrers from mentioning that the consumer has any other option. This is where solicitors have to be whiter than white, but they do not have a particularly good track record in that respect.

There is also the argument from fear: if we don't pay referral fees, other organisations will, but that seems to me to be a particularly poor argument.

On the whole, I think solicitors should earn their reputations, including their reputation for independence and integrity, not try to buy them. However, I will give both Quality Solicitors and Contact Law a fair chance. In addition, I will continue to demonstrate to estate agents, accountants, IFAs and other introducers that they can safely recommend me on the basis of the quality of my service and not to get a referral fee; I think that is a better business and professional model - a genuine recommendation, not a bought one

Identity theft

Boys & Maughan's tips to combat ID theft are a useful, if on the whole common sense, reminder of how to avoid ID theft. One point that I had not recognised before is that company directors' full names, home addresses (usually) and signatures (often) are available from Companies House. In addition, as it happens, so are their dates of birth - useful material for a fraudster.

Another example of the way in which the online, interlinked information society works against its own security

At Nelsons Property Lawyers, we are actively working on advice to protect against property theft - watch this space for developments

The price of justice

In the Guardian today, Marcel Berlins is delighted with the Jackson Report, expecting it to drive down legal costs - of civil litigation, anyway. Maybe it will, but I think he is unfair on lawyers.

OK: legal costs are high; I don't dispute that. However, to say they are disproportionate is, often, unfair. However small the claim, the lawyer running (or defending) it is expected to be an expert in the court procedure and the relevant law - judges love criticising solicitors for getting anything wrong, and penalise them by disallowing their costs or, in extreme cases, making them paying the opponent's costs.

As you will understand, this makes litigation solicitors risk-averse: they cover all the bases, even in the smallest cases, resulting in high bills

So: if you want the costs of litigation to be proportionate, your expectations should be proportionate, too - don't expect a gold-standard service for a nickel-standard claim and you might get a nickel-standard bill.

I should mention that this opinion is relatively unbiased, as I do not handle court work myself

(Rant over!)

Three strikes and you're out - daft!

How can the government think it is fair, proportionate, feasible or right to terminate a household's Internet connection because someone using it is accused of breach of copyright?

Quite apart from the weakness of the evidence and the risk that the transgressor is piggy-backing on someone else's insecure wireless network, terminating an entire household's connection is unfair on any members not unlawfully downloading.

It is a disproportionate sanction anyway - hardly reducing social exclusion, especially as it is the poorwr sections of society who are the most like

Do lawyers milk it?

"An exact legal opinion on a claim could vary, depending on how expensive your lawyer is" - I read this recently (cannot now remember where) and thought, "How true!" Whatever the merits of a case, there will always be a lawyer willing to argue it - for a fee, of course.

In a number of cases, this seems to be just to make money or because the client insists. Two current examples:

1 Ms X's relationship with her partner broke down. She left the house he had bought and (as agreed at the outset) stopped contributing to the mortgage, etc. Despite the clear wording of the agreement they had both signed at the outset and despite the fact that my client has no money, her ex is trying to prove that she owes him for her perceived under-contribution to the household expenses, and his lawyers are writing unnecessarily complex and threatening letters to get her to pay what she does not owe and cannot afford. I have responded, pointing out that the best solution for both parties is to walk away from the collapsed relationship, but I suspect he will spend money on trying to prove he is right, even though it does him no good. Meanwhile, the lawyers are milking it

2 Mr Y had to liquidate his company two years ago when he realised he could not trade through a sudden difficult period. He is far and away the main creditor and has lost far more than all of the other creditors put together. Though the only money he took out of the company was reimbursement for proven expenses incurred on the company's behalf, he is being pursued by the liquidator, through solicitors, alleging fraudulent preference. Every few months, a letter arrives, claiming that some sequence of transactions or another is indicative of misuse of company funds. Each time, Mr Y and I go through the scant details supplied, he reaches deep into his memory and explains what he thinks the circumstances were, and I detail that to the liquidator's solicitors. It all then goes quiet but, just as I think I can archive the file, another set of accusations arrives. As far as I can see, the only purpose of this is to ensure that the liquidator's fees and his solicitors' swallow up all available funds and the creditors get nothing instead of 50% of what they are owed

A less cynical view, of course, is that lawyers are trained to consider every possibility, and as a result often make things more complicated than they need be - not deliberately or to make more money, but just because that's the way they are. Perhaps I should try to adopt this more charitable view