Raising enquiries is usually the most time-consuming stage of the conveyancing process. Solicitors have to get into these nitty gritty questions in order to ensure a property is both saleable and mortgageable. The considerations here are as diverse as whether or not any historical planning permissions are in place, whether there are any untenable rights of way or whether there are any particularly concerning restrictive covenants in place.
Many solicitors deal with this part of the process by sending over a standard list of enquiries for every purchase they handle. Though this may seem like a helpful time-saving exercise, we’re afraid that we consider this attitude to be rather missing the point.
Instead, we believe conveyancers should start seeing the process of raising enquiries as a rather more discerning art. Building a true understanding of what’s required in the process can save a great deal of time, while also protecting the interests of clients and reducing the risk of disputes and legal clams.
Here’s the nub of the issue: it’s far better to send fewer targeted enquiries than to send a whole ream of unnecessary ones. We’d argue that there is scope for both new and more experienced solicitors to develop the skill of determining which specific enquiries are required for each specific transaction.
The essence of our argument is this: context is important and not all enquiries need to be raised for every type of property. Raising enquiries should not simply be a tick-box exercise of powering through a standard list of questions. Though this may seem like a time saver, it usually doesn’t turn out to be the most efficient course of action in the long run.
The Law Society’s Conveyancing Protocol helps a lot here. It’s a method designed to make conveyancing smoother and more predictable – or, at least, as much as is possible in conveyancing. Taking your lead from the protocol can also reduce the risk of misunderstandings and possible disputes.
Why do conveyancers have a tendency to ask so many questions?
Traditionally, the principle of caveat emptor meant that the responsibility to be sure they weren’t getting ripped off laid with the buyer alone. Therefore, the onus was on the buyer and their conveyancer to ask the right questions in order to get honest answers from the seller. This gave rise to a kind of scattershot tactic of conveyancing, where it seemed wise to ask as many questions as possible in the hope of dredging up the one answer that might be concerning.
However, the conveyancing landscape has changed significantly in the last decade. This is in no small part due to the fact that the sale and advertisement of property now fall squarely under the governance of the consumer protection regulations (CPRs).
Because of this, sellers are now legally obliged to inform their estate agent and any potential buyers about information that might make the property a less attractive prospect (examples include subsidence, a history of flooding or having the kind of neighbours who consider street warfare an enjoyable hobby). This means that sellers, estate agents and conveyancers are now required to be proactive rather than just hoping that buyers don’t ask any pertinent questions.
In short, the rise of CPRs in property transactions means that there is much greater transparency, scrutiny and protection for property buyers. Though the principle of caveat emptor does still play a role – and any conveyancer worth their salt needs to be committed to due diligence – there’s no longer any real reason to employ a scattershot technique to raising enquiries.
What does the protocol say about enquiries?
In order to be seen to be following the protocol, conveyancers should raise enquiries efficiently, diligently and in a way that protects both their clients and themselves. We also need to be seen to be making appropriate enquiries, not inappropriate ones.
Enquiries are considered appropriate if:
- They’re being raised in order to clarify issues arising from the contract pack.
- They’re about information that’s missing, incomplete or ambiguous.
- They’re relevant to the title, existing or planned use, the nature, or the location of the property.
- They’re following up on concerns uncovered during a survey or searches.
- They’re coming directly from the buyer (though these may need to be filtered by the conveyancer).
Enquiries are considered inappropriate if:
- They’re an indiscriminate use of standard enquiries.
- They’ve already been answered sufficiently in the documents of the contract pack.
- They’re not relevant to the property in question.
- They can be answered easily with the use of an online tool such as sales particulars, Google Earth or Street View, or a local authority planning portal.
- They’d be better addressed during a property viewing or by a surveyor during a survey.
If any inappropriate enquiries do make it through, the protocol gives the seller’s conveyancer permission to ignore them.
We think the protocol is a helpful framework, but, of course, we’d never suggest relying on it more than you rely on your own common sense. After all, just as we don’t advise indiscriminately sending out a list of standard enquiries at the start of every transaction, we also wouldn’t suggest indiscriminately following a protocol without considering the needs of an individual transaction.
We’ve said it before, and we’ll say it again: solicitors are not robots and we need to be careful not to act like them. Rather, it’s important to take a holistic view of each and every client matter, as this is the only way to provide a truly client-centred service.
If you’d like to talk more about raising enquiries, following protocols or becoming the sort of solicitor who acts like a human rather than a robot, please do get in touch.