A lawyer has said that a number of estate agents are asking legal firms for information about buyers or sellers, without realising that this information cannot be released unless the solicitor has the client’s signed, written authority.
Arthur Robinson, of Emmersons Solicitors, said that the Data Protection Act (often referred to as GDPR) is very clear about restrictions.
Additionally the Solicitors Regulation Authority requires solicitors to maintain client confidentiality.
Robinson said that estate agents could “huff and puff” all they like and point to solicitors who disregard the obligation by cc’ing every email “to all and sundry”.
However, he said, without the client’s specific signed, written authority, non-disclosure is a regulatory necessity.
He said that it is not enough for conveyancers to ask clients if they can give information about them to the estate agent, and it is not enough for the client to say yes. There needs to be a written authority on file.
He said that agents who do not have written permission on file could also find themselves in hot water if they share client information with other parties.
He said that a simple signed form at the time of engagement should suffice, but added that too many agents still do not understand the implications of data protection.
https://ico.org.uk/your-data-matters/does-an-organisation-need-my-consent/
And that’s why transaction timescales have increased along with fall through rates. GDPR was not designed for this and conveyancers need to ensure they get this permission at the time of being instructed if they feel they cannot communicate without it. It is up to them to ensure that they can speak with other parties about the chain rather than use this lame excuse to do a poor job on behalf of their client. This individual seems to think it is up to everyone else to get the written permission for him. Perhaps he would like someone else to get their ID for him as well. If he feels he needs their written permission then make sure he gets it at the outset!!!!!!!!!!! Grrrrrr!!!
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“And that’s why transaction timescales have increased along with fall through rates.”
Exactly right – conveyancers like Arthur Robinson, of Emmersons Solicitors (make note agents).
Agents have a legitimate interest in a sale where they were responsible for introducing the buyer to the property, and was instrumental in forming the sale (subject to contract) with the seller. When acting for a seller, we are that mutual client’s agent, responsible for the sale of the property, not just its marketing.
What specific regulation does Mr Robinson think prevents him from providing an update to an agent? To my knowledge GDPR only applies to personal information – information that can be used to identify a person, e.g. name, DOB and address; NOT whether or not mortgage instructions have been received, or if he’s got round to reviewing the replies to enquiries he received over a week ago. Typically in the UK, by the time conveyancers are instructed the agent (should) already hold photo ID and proof of address for buyer(s) and seller(s).
It would be interesting to know what David Beaumont thinks of the contents of this article.
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Sharing information with estate agents about a case – heaven forbid.
Next thing they’ll be expecting lawyers to have the courtesy to answer their telephone calls.
I suppose the better solution would be to employ a panel manager to whip those lawyers into shape.
This type of heretical outrage needs to be nipped in the bud.
… I feel there maybe material here for my January column …
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There’s a trip wire we never saw coming under GDPR however, it is a job for all of us to make sure we have otherwise when another agent or even ourselves go chain chasing, where will it lead, nobody can talk to anybody! A privacy step too far and blocking us from getting our job done efficiently, upsetting the client for delays by knowing very little and with the only person happy being the solicitor knowing he won’t be chased by us.
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We have our clients sign up to an agreement at the very start which agrees that we can share any and all informartion with the chain – except personal data and financial information about their mortgage of course.
Too many conveyancers use dreadfully brief opening authority forms to clients, so hardly surprising they face the article’s issue.
2020, conveyancers – up your game, and if your head of department is stuck in pre- 2020 mediocrity, tell them they are.
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Ah, the good old Laws of Unintended Consequences. How we love them eh?
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I don’t think that the Data Protection Act is referred to as GDPR…they are two separate and binding pieces of legislation/regulation. We are obliged to follow the methods of data handling as prescribed in the GDPR but a lot of this is also enshrined in UK law through the DPA 2018. As such you could refer to either and still be correct…
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Pretty accurate. DPA 2018 Act modifies the GDPR (EU legislation) for the UK. Post-Brexit, as long as you comply with DPA 2018 you shouldn’t need to worry about the GDPR. Talking about e.g. mortgages and other financial arrangements relating to an identified or identifiable person does require prior permission from that person.
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Don’t want to be burned at the stake for heresy, how about conveyancer’s actually pick up the phone and update their clients, that way estate agents won’t have to upset these people. Maybe if they gave regular coherent feedback, explained the process and stopped blaming the other side (Solicitors – not the dead!) estate agents wouldn’t have to ring for updates once a week.
By the way conveyancer’s the only reason agents ask these questions is because vendors and buyers ask agents for updates and when no answer is given, blame the agents for not doing your job! – this is usually because you don’t bother to respond to your own fee paying clients…
…and breathe.
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It is all very simple if you ask in the welcome pack – “Are you happy for us to keep your estate agent and other agents in the chain updated with the progress of your sale to potentially speed up the completion time?”
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Am I missing something- he states that this could be easily solved with a simple clause in the engagement paperwork- but then says agents don’t understand. I know who’s not ‘getting it’ in this transaction and it ain’t the agent pal.
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and so the blame game continues. You know that estate agents will ask so why don’t you cover it in your opening paperwork. Estate agents have no contract with the purchaser – duh!
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Should remind the national firm of conveyancers that gave my clients personal email address out to their vicious buyers and subsequently were harassed for weeks.
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How current, the following extracts from my exchange with a conveyancer only yesterday………
Thank you for your prompt reply.
Sorry I don’t buy that, agents have been running up and down chains since time immemorial without the specific consents that you refer to, like it or not that coordination is a vital component in low fall through rates and satisfied clients. In this day and age of bucket shop conveyancers and internet only bottom feeders we strive to extol the virtues of clients using local proactive solicitors who are cooperative and available even if they are not the cheapest, value rather than cost if you will, if you are telling me that *** are adopting an approach as described by you we simply cannot refer going forward.
Cheers
I don’t mean to be like a dog with a bone on this issue but I feel strongly about it, agents don’t ask for personal information they ask for transactional information and we speak to lawyers daily up and down the country herding cats so that the left hand knows what the right hand is doing. Lose that and its chaos.
Think that’s enough mixed metaphors from me J
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