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!)
Friday, 19 February 2010
Thursday, 18 February 2010
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
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
Tuesday, 16 February 2010
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.
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
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
Monday, 15 February 2010
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.
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
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
Monday, 8 February 2010
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
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
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