As someone who practises in the field of property mortgage fraud claims, it gives me no comfort to say that I foresaw that PI premiums would escalate and – coupled with the drop in conveyancing caused by the recession – create the financial crisis for solicitors reported in your front-page article of 17 September. However, there is a solution to this particular crisis.
Before coming to the solution, let me record that, over the past decade or so, the Council of Mortgage Lenders (CML) has imposed on solicitors who sign certificates of title ever-increasing obligations. It has reached the point where certificates now say little about title (which is mostly registered) but imply much about the identity of the purchaser, the source of his finances and the transactional history of the property.
In consideration for providing these certificates of title, and thus exposing themselves to unlimited (but hopefully insured) liability, mortgage lenders pay solicitors – nothing.
The obvious solution is for solicitors to limit or exclude their liability to mortgage lenders for any financial loss arising from their certificates of title.
Plainly, if an individual solicitor tried to do this, he would promptly be removed from the lender’s panel.
However, if the Law Society orchestrated this on behalf of all conveyancing solicitors, the CML would have to accept it. Not only would this reduce or remove solicitors’ liability, and hence reduce their insurance premiums to manageable levels, it would probably force lenders to tighten up their own lending procedures, to the benefit of society as a whole.
Alan Tunkel, (Chambers of Sarah Asplin QC), 3 Stone Buildings, Lincoln’s Inn, London
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