Letters to the Editor

TAKE COVER

I was interested to read Spencer McGuire's letter on the access to the revised Council of Mortgage Lenders (CML) handbook which will be only available via the Internet (see [2002] Gazette, 26 September, 18).

There is an aspect of the revised conditions that will be of interest to all conveyancing practitioners.

The conditions will provide that completion will not take place unless and until a home's insurance policy is in place, such as that provided by the National House-Building Council (NHBC) under the Buildmark scheme.

One can envisage circumstances where a prospective home owner is keen to gain possession of their property but where the property has not yet received its final inspection from one of NHBC's building inspectors, or where a further inspection is required before it can be confirmed that the property meets NHBC's standards, and the Buildmark cover can be issued.

It is incumbent on the NHBC registered developer or builder to ensure that new homes have been enrolled for cover under Buildmark and, if there is any doubt, the purchaser's solicitors must make enquiry of the vendor's solicitors at an early stage to ensure that they will be able to forward the cover note to the purchaser to confirm Buildmark cover is in place before completion takes place.

The NHBC is changing its procedures to ensure that the Buildmark cover is made available as soon as the property has passed final inspection but close cooperation between the sellers and buyers solicitors will be required to ensure that the CML conditions can be met.

John Burman, solicitor and company secretary, NHBC

CONFLICTING ISSUES

I have been waiting for the publication of the Law Society conflict and confidentiality rules review with eager anticipation.

Having read through the results of the profession's response to the consultation paper, I was particularly disappointed with the fact that only 79 responses were received in relation to conveyancing conflict.

Therefore, it comes as no surprise that the Society is proposing that there be no radical change by way of relaxation of rule 6 to permit seller and buyer in a residential conveyancing transaction to be represented by separate individuals in the same firm.

The new proposals state in general terms the opinion of the Society that conveyancing is 'an area where the risk of a conflict arising is high' notwithstanding the Society's acknowledgement that 'there is usually no apparent conflict at the outset of a transaction'.

Having made these sweeping remarks.

I was a little surprised that the Society gave two examples of such conflicts as being - where the parties wish to renegotiate the price after survey and where the parties wish to move at different times.

I may be totally missing the point, but are these actually conflicts of interest or are they merely an inherent part of the conveyancing process? In any event, surely these two specific matters are nearly always dealt with by the selling agents, and if not, surely it is in the clients' interest to progress the transaction to their mutual satisfaction that such matters can be dealt with by one firm rather than the ridiculous situation of letters going to and fro proposing completion dates which are often overrun by delays in communication.

With regard to any other conflicts, I can only imagine these to relate to matters of title and/or compliance with the Council of Mortgage Lenders requirements.

In such circumstances, I would again state that these are not matters which should fall under the umbrella term of 'conflict' but should and, I am sure, would be dealt with by the conveyancer concerned with the application of his professional skill, common sense and always with due regard to the professional indemnity premium.

In the unlikely event of a true conflict arising then the clients will have provided their informed consent at the outset of the transaction, and would be advised to seek independent legal advice on the issue in question.

David Huyton, Huyton Roberts, Wirral

LURE OF SEMINARS

I am writing to commend to the profession the regional seminars organised by the Law Society in most major cities around the country.

Every member of the profession who has an interest in conveyancing, probate and the other matters referred to in the consultation document should attend and be heard.

It is vital that we familiarise ourselves with it so that the proposals do not go unchallenged.

DSC Gibson, president, Newcastle upon Tyne Law Society