‘Ready to exchange’ – and other conveyancing myths

Peter Ambrose
Peter Ambrose

You probably won’t be aware of it, but February 28th 2018 was a sad day in television history.  It was the last airing of a fantastic show called Mythbusters, which set out to prove or disprove popular myths through the use of scientific investigation and analysis.

The programme shone a light on beliefs that had been around for years but which no-one had ever bothered to question before.  Like whether the Great Wall of China is the only man-made structure that can be seen from space.

When it comes to myths, if you spend time on social media you’ll see plenty of them surrounding how to improve the house buying and selling process.  With transactions being more painful than ever, we thought it might be useful to examine these a little closer and see if we could debunk any of them.

  1. The conveyancing system needs replacing

An easy one to start with.  The process for buying and selling properties does not work and needs replacing.

Sure – it’s slow, unpredictable and painful at times, but it works.  Otherwise, in the last five years, how did over six million properties change hands?   In many ways it’s similar as visiting your doctor; it’s not what you’d call a brilliantly efficient service but it does the job.  Oh, and it’s not going to change so let’s not waste any more time talking about it.

  1. Higher conveyancing fees result in better service

Lawyers love this one.  It based on the idea that the more you pay the better service you will receive.

This is a great misdirection myth because in theory it makes complete sense.  Paying higher fees should mean the lawyer can afford to work on fewer cases, devoting more time to each, so issues will be dealt with more quickly.  Unfortunately, it’s completely distorted by the panel managers who add fees for themselves and their referrers so the client pays for a Stella-like reassuringly expensive service, but actually receives a cheap Carling version that helps no-one.

  1. Educate the public to make better choices

An absolute classic.  If the public had a better understanding of what’s involved, they’ll happily fork out higher fees and we’ll see an improvement in service.

Over the years, we’ve spoken to tens of thousands of clients and not one wanted to know how difficult the process is and what could go wrong.  They always tell us that their transaction is straightforward and we just get in the way; like Eeyore, clouds follow us on a sunny day.  They just want to know the cost and how long will it take?  A government brochure explaining the process is not going to help, and as for flowcharts – let’s never talk about them again. Ever.

  1. Lawyers must manage expectations better

This is tricky because it’s so popular.  It’s based on the principle that clients have an expectation of a level of accessibility, responsiveness and predictability and lawyers must manage this.

People compare conveyancing to other services, such as Waitrose who offer a premium service which includes delivery timescales and instant responses to changes in circumstances.  The argument goes, if they can do it, why can’t lawyers match the same level of expectation.  The problem is you are comparing apples with chairs.  Clients typically have little experience of conveyancing – an opaque process in which they have neither the interest nor the understanding.  Clients ask us why, if they can book a delivery slot for their shopping, why can’t we guarantee an exchange date?   As they have no comparable frame of reference for what is a reasonable expectation, then trying to manage it is just not going to work.

  1. Legal experience not technology is the only solution

Let’s finish on a classic.  We’re always told that in the good old days, deals went through more quickly because solicitors had the relevant experience to enable them to ask the minimum questions and take a view on more issues.  It is this lack of experience that causes the delays and service issues we see today, and technology is not a suitable replacement.

So here we go.  We just can’t compare the demands placed on lawyers today with those of the past.   Deals are more complex, there is more case law to consider, lenders have greater demands and clients expect more responsiveness and transparency.  While increased experience can reduce the number and quality of enquiries raised, it does not solve the issue of handling the increased range of issues arising and client transparency.  Technology does.  End of story.

What can we do about it?

Busting these myths is really important for everyone in the property industry.

If we don’t, we run the risk of trying to find solutions to the wrong problems, something that we are already seeing.

In future, the next time someone suggests “we really need a government brochure to educate the public on the conveyancing process” just remind them that Neil Armstrong did land on the moon in 1969 rather than it being staged in a warehouse in New Jersey.

Peter Ambrose is founder of conveyancing specialist The Partnership. 

 

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17 Comments

  1. Rob Hailstone

    A slight tweak to each headline and maybe no ‘myth busting’ is needed?
    The conveyancing system needs improving
    Higher conveyancing fees can result in better service
    Educating the public helps them make better choices
    Lawyers could manage expectations better
    Legal experience and technology are two parts of the solution

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  2. Peter Ambrose (The Partnership)

    Doh – how come I didn’t spot that!

    Well that’s two hours writing time I’ll never get back  🙁

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  3. janbyerss

    Good luck telling the public they need to pay more for a lawyers most of whom charge high fees already.
    As for asking the givt to sell solicitotrs services that is the modern world – “I do not get eniugh money so I want to govt to fix ot for me”

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    1. Anonymous Coward

      In many cases I don’t think conveyancing solicitors charge enough.

      A proper one definitely does, but buyers and sellers are often swayed by an agent who offers a recommended “conveyancing farm” who will almost certainly charge just ever so slightly less than a good local solicitor.

      If a buyer or seller has never had an experience with a conveyancing farm solicitor then the slightly lower fee will look like a great deal.

      But there are mountainous referral fees included in that lower fee so the actual fee paid to the company is often ridiculously low.

      The economics of it don’t make any sense, but a lot of agents have managed to get swayed by this business model.

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  4. Rob Hailstone

    What do you call a high fee for conveyancing janbyerrs? Say a freehold and then a leasehold purchase at £650,000.00 with a mortgage? Do you really know know the amount of work and risk invloved in both and the required amount of expertise to conduct them?

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  5. RedRebel

    So basically what you are saying is “lets do nothing”?

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    1. Robert_May

      it seems more a case of  ‘Get off my land’ versus  ‘Ramblers welcome’

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      1. Peter Ambrose (The Partnership)

        Actually – this article was more about myths rather than solutions ( at this time !)

        I do have solutions to the issues surrounding the industry, and it’s based on new technology and training.  We just need to debunk these other myths first to shift the focus to finding solutions.

         

         

         

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        1. Alan Murray professional conveyancer mentor trainer consultant

          Peter how are you going to write an article giving solutions to the issues surrounding the industry and compress that down to one page. I think I could write several chapters such are the massive problems. I will be waiting for that article with interest!

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          1. Peter Ambrose (The Partnership)

            You’re absolutely right!    I certainly couldn’t get it down to one page.

            However – I do have a lot of ideas of how to improve the process ( I have shared some of these in previous PIE articles ) as we are already using them at my company.  It does take decent software and an understanding of the issues, but it also requires organisational change which is actually a far bigger challenge.

            If you drop me an email, happy to share!

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  6. Alan Murray professional conveyancer mentor trainer consultant

    1. Agreed whilst it has it’s faults there is no real way to change the system without ripping up and starting again. Whilst I can think of a few ways to improve by doing that unfortunately not practical. Actually some of the older ways of working which have disappeared could be brought back, but I guess that makes me a dinosaur?

    2. Bad lawyers are bad lawyers regardless of the fees they charge.

    3. Educate the public? On how many subjects should that be done? Do we want a society where every profession and industry publishes its own pamphlet to “educate the public”? Not sure conveyancers are ever going to be able to do that, I can think of plenty of areas of society where the public still need educating and they are far more important than conveyancing so unfortunately that is just never going to happen.

    4. This is a tough one. I have to say as an experienced, competent lawyer a lot of the observations I see from conveyancers relating to issues they experience are anathema to me. There is no substitute for experience and you can only learn how to be a top quality conveyancer by doing the job and seeing where you need to improve and what clients and other professionals expect. And that takes time, lots of it.

    5. Somewhat tied in with the above. There is no substitute for experience no argument. I am not sold on technology simply because the firms I know who use it have failed to invest in competent staff and are still a nightmare to deal with. If somebody can categorically show me a piece of technology which makes all my experience and expertise redundant and assists clients in buying and selling a property I am prepared to listen to the argument. Until I see that no discussion can take place.

     

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    1. Peter Ambrose (The Partnership)

      Very fair comments Alan – and yes – you are right on some of these points.

      To say that things were done better in the past definitely doesn’t make you a dinosaur – we just need to take what was done well ( training, nurturing and respect ) and apply it to a much more challenging world.

      With respect to your other questions – you are correct that technology without training is a recipe for frustration – the challenge most law firms have is the quality of software that is out there is frankly appalling.

      I would be delighted to demonstrate some of the work that we are doing around technology – my details are in the public domain – get in touch!  We are in phase one at the moment ( and that’s taken 10 years !) to deliver accurate information to the desktop but the next step is analytics and this is where it gets clever.

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  7. Woodentop

    It would be far more productive to stop the rhetoric on the past and move forward with what needs to be done to make things better or is it that no-one has anything new and better that ‘will actually replace‘ what we already have? This is not moving forward. If you want change then sell us the ideas that we can use to make a difference. Every time I hear change suggested, it is often technology championed with some pretty pathetic salesmanship ……. and more to do with making money for IT companies, with little to no change in the process which can ‘legally work’. So many variables are involved in conveyancing and why the process hasn’t change for so many decades.

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    1. Peter Ambrose (The Partnership)

      Agree 100%.  Rest assured we have developed LOADS of unique technology that are genuine game-changers.

      The challenge is implementation but we have an idea for that – it comes down to timing – its not about making money for IT providers but solving the more tricky problems first.

      Next month’s article has a working title of “Solving the “eating the chocolate elephant problem” – and yes – I do have concrete deliverable ideas.

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      1. Woodentop

        Looking forward to any ideas that will make a difference.

         

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  8. Tom Horrocks

    Myth Busters – a response to ‘Ready to exchange’ and other conveyancing myths
    This is a response to the article in Property Eye of May 17 2022. The numbered headings are as in original Property Eye article.
    1. The conveyancing system needs replacing – “Oh, and it’s not going to change so let’s not waste any more time talking about it.”
    It is a good job the lawyers of 1925 were not so easily defeated and were willing to grapple with the problems of land conveyancing for the benefit of the economy and their customers!
    2. Higher conveyancing fees result in better service – “based on the idea that the more you pay the better service you will receive.”
    But once you reach a level where to make a profit you begin to cut corners, rather than doing the job properly, then raising fees probably does help. In 1956 the cost of legal fees (not searches and other add-ons) for conveyancing a ‘chimney-pot’ ordinary terraced house in Preston Lancashire, was a working man’s salary for the month. To keep things in the same perspective, in 2021 the average annual working salary for the UK was £25,971. Are you charging flat legal fees of £2,164 plus searches and other mark-ups and add-ons in May 2022?
    3. Educate the public to make better choices – “An absolute classic.  If the public had a better understanding of what’s involved, they’ll happily fork out higher fees and we’ll see an improvement in service.”
    It’s not an improvement in legal service customers want. Customers do not know, and rightly do not care, how experienced a lawyer or conveyancer you are. They want the key, pure and simple, and as quickly as possible. Why do solicitors keep providing them with data, which they don’t understand, and have no interest in anyway?
    It’s an improvement in customer service they want.
    4. Lawyers must manage expectations better – “why can’t we guarantee an exchange date?”  
    It’s not guaranteeing an exchange date! It’s the frustration of not knowing that you have exchanged until the very last minute. Why not exchange earlier? Why are lawyers OK to exchange on conditional contracts when there’s a Covid-19 pandemic on (are they experts on SARs viruses and the likelihood of a Covid risk preventing a completion), but come over all squeamish when asked to assess the risk (and to exercise their professional judgment) in determining whether a satisfactory mortgage offer has been received to force a buyer to complete, or whether the absence of a building regulation consent (for works carried out more than 12 months previously), means that a condition in a contract for the sale of land has or has not been satisfied for the purposes of the reasonable man sat atop the Clapham Omnibus?
    In 1995 trainee solicitors were being taught how to draft conditional contracts for the sale of land. See Jordans Conveyancing LPC Manual 1995/ 96 by Frances Silverman, Chapter 15. Why have we lost this ability?
    5. Legal experience not technology is the only solution – [A] “We’re always told that in the good old days, deals went through more quickly because solicitors had the relevant experience”
    Deals sometimes did go through more quickly, because solicitors were exercising their professional judgment on things they had experience of, and were trained to carry out. That is the transfer of title to land and to ensure the buyer got a good and marketable title. Period.
    They were not asked to ensure that the buyer would acquire a property fit for the buyer’s purpose as a home. That is, will never flood (despite climate change, and those inconsiderate Medieval peasants creating townships on rivers used for water, irrigation, food and transport), is not now nor ever has been since before the industrial revolution had any usage which might be thought of as contaminating (despite incomplete records, geology causing toxic materials to flow from one piece of land to another, oh and the UK being the cradle of the industrial revolution), and its state and condition is perfect, with no nasty Japanese Knotweed in the garden, despite most conveyancers knowing nothing about, and not trained to exercise professional judgment upon whether flooding, contaminants, invasive species, building works represent a significant threat to the life and limb of the buyer occupier.
    The purpose of additional enquiries is to discover encumbrances on title. Not to ask and answer questions about the state and condition of the house by lawyers who have never physically visited the property. See Hoffmann LJ at page 1022 in William Sindall plc v Cambridge County Council (1994) 3 All ER 932.
    [B] – “We just can’t compare the demands placed on lawyers today with those of the past.   Deals are more complex, there is more case law to consider, lenders have greater demands and clients expect more responsiveness and transparency.”
    Deals are not more complex. Title to land is for the most part registered, and so guaranteed by the State. Any complexity in the transfer in a good & marketable title to land, has been added into the process by ourselves. Seduced by data without any context, on which even a trained and experienced lawyer must struggle to advise or exercise professional judgment.
    There is more case law to consider. I wish there was. Case law is an excellent guide prepared by the courts to manage the risks inherent in conveyancing. Apply the ratio of the case, and a lawyer will not have acted negligently, even if the outcome was not what the client hoped for in a ‘perfect world’. The problem is caselaw is the lifeblood of the common law. Without cases there are no judicial determinations of what is an acceptable exercise of professional judgment by a competent (not perfect) conveyancer. Title indemnity policies mean that conveyancers do not have to consult caselaw, and determine whether the ratio of the judgment fits the specific circumstances of the client’s issue, or are the legal principles being ‘stretched’ too far even for an accomplished advocate to convince the judge. Indemnity insure it away, those difficult legal questions no longer need to be asked, the conveyancer can rest peacefully in their beds knowing cash will make the client go away (if not the problem!), and the case law never gets made.
    [C] – “While increased experience can reduce the number and quality of enquiries raised, it does not solve the issue of handling the increased range of issues arising and client transparency.  Technology does.  End of story.”
    Ah technology, the answer to the maiden’s prayer. The ‘techno-magic’ in which computers by adding up zeros and ones very quickly can solve the complex problems of society which are beyond the wit of mere men and women.
    The problem is applying technology to the wrong process, merely automates the problems with the wrong process. No matter how much you polish it, the answer to the wrong question, still gives you the wrong answer. As Michael Hammer said in the Harvard Business Review July – August 1990 “Don’t Automate, Obliterate”
    In 2022, it has to be the expertise and wisdom of conveyancing lawyers, looking at themselves and their processes, which will improve the house buying and selling process, just as in 1925. Don’t wait for the Government, Trading Standards, or a computer algorithm to improve things. Let’s use our knowledge and creativity of how to use the law as a tool to improve society and human processes. To do it for ourselves as exhausted conveyancers, and for the benefit of the economy and our customers.  

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  9. Rob Hailstone

    Some very valid points Tom.

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