The Law Society Council at its meeting last month passed unanimously the rule 6 amendments relating to acting for a lender and borrower client.

The Master of the Rolls has concurred and the effect of rule 6 will be to enable joint representation of lender and borrower to continue for the benefit of the public and profession.The role of solicitors when they are acting for the lender and the borrower, whether in a residential or commercial transaction, will be confined to dealing with matters of title as detailed in the rule.

Additionally, solicitors jointly acting in a residential transaction will be able to use a standard form of report on title limited to the matters as set out in the rule.The rule comes into force on 1 of April 1999.

The Law Society has deliberately provided a long lead-in period to enable lenders to adopt its documentation and procedures in readiness for the change.

The rule provides for lenders to self-certify that their instructions comply with rule 6.

For the avoidance of any doubt or delay, the Society will be publishing a list of those lenders that have indicated they intend to adopt the new fast-track procedure and will comply fully with rule 6 by 1 April.The rule 6 lender and borrower provisions were made following a two-year consultation with the profession and outside bodies.

The Council of Mortgage Lenders (CML) was consulted on a number of occasions.

The issues it raised were all given thorough consideration and, in the vast majority of cases, adopted.

During discussions with the CML and individual lenders, the Law Society was at pains to make the point that it would correct any omissions or errors and ensure that the rule was comprehensive.

At no point did the CML or any individual lender identify a core task or duty which it would expect a solicitor to undertake in a normal course of transaction and which had not been covered in the rule.

Therefore, it is difficult to understand why some of the lenders were so opposed to the rule when it was announced.

What is it that they want that is not covered?The whole basis on which this issue was approached was to produce a platform on which joint representation could continue.

If separate representation is adopted by the lenders then they will be increasing the cost of conveyancing for reasons of their own choosing.The rule has been made in the interests of the public.

The public has an interest in having the right to turn to an unlimited and comprehensive indemnity scheme, one which is not unreasonably shackled by the burden of lenders' claims.Pending the implementation of the Rule 6 changes practitioners should take particular care with reports prepared for lenders (or buyers) which contain assumptions.

In particular assumptions that there is no contamination in or from the ground.

For example, the Halifax Building Society valuation report contains such a statement.

Its practice is to forward the report to the purchaser's solicitors under cover of a standard letter asking the solicitor to check the value and assumptions are correct.Such requests placed an onerous burden on conveyancers which they cannot always be expected to discharge.

Furthermore, in the standard letter to solicitors, attention appears to be diverted away from assumptions regarding contaminated land which are beyond the knowledge of the solicitor and towards more easily and variable assumptions.Again, in its standard letter the Halifax writes: 'In the report, you will see that the valuer has made certain assumptions about the property (for example its tenure).'The Halifax is not the only lender adopting this practice.

Other lenders and privately appointed surveyors are taking the same approach.

Indeed, the Royal Institute of Chartered Surveyors' (RICS) Red book gives surveyors the advice that they should exclude an opinion on contaminated land.

This is an obvious attempt by lenders and valuers to shift responsibility for assumptions made in connection with the property onto the solicitor.Solicitors should specifically advise lenders in writing that they are unable to verify the assumptions on contaminated land and that their report on title is limited accordingly.

The lay client also needs to be aware that the valuer has made a number of assumptions which the solicitor cannot be expected to verify.If no steps are taken, and in the future it is discovered that the property has been built on contaminated land, a claim for damages could well be made against the solicitor.

The property concerned may decline in value, become unsaleable, or be the subject of an expensive clean-up operation.The Environment Act 1995 (not yet in force) obliges local authorities to identify contaminated land and in the appropriate circumstances to serve upon the 'appropriate person' a remedial note setting out the work required to clean up the contamination.

The 'appropriate person' is the polluter.

In the absence of the polluter, the owner or occupier of the land will be responsible.

If the owner is insolvent, responsibility will fall on the lender who has taken possession, who in turn will rely on the solicitor's report on title.The rule 6 changes do not mean an end to the standard mortgage instruction (SMI) discussions.

It was always known that any standard mortgage instructions negotiated with individual lenders or with the CML could not be anything other than a precedent which members could accept on a voluntary basis.

The CML is a representational body.

It is a trade association for lenders.

It does not have regulatory powers.

It cannot make its members adopt an SMI.

Indeed, when the SMI was at an advance stage of formulation, a straw poll of members was taken.

While a significant number said it would adopt the SMI, some made it perfectly clear that under no circumstances would they accept a standard set of instructions.

Amongst those who rejected the SMI was a large lender which had made a significant number of claims on the SIF.The SMI will fit happily along side the rule 6 amendments and that the benefit which standardisation of instructions will produce is an objective still worth attaining.Local law societies could discuss the introduction of rule 6 and the Law Society will be happy to facilitate those meetings by providing a speaker whenever possible.

Continuing professional development courses will undoubtedly include this rule change within their forthcoming seminars.The Law Society's professional ethics department will provide assistance to practitioners if they have specific queries on the wording of the rule.