Am I obliged,
being on the
Birmingham Midshires conveyancing panel, to carry out a Lawyer Checker Search, an HS2 search?
Birmingham Midshires make no specific obligation to carry out any of
the searches listed. The UK Finance Lenders’ Handbook simply states that ‘you must
ensure that any other searches which may be appropriate to the
particular property, taking into account its locality and other
features are carried out’.
Remember that most ‘less usual searches’ (as described in the Law Society’s Conveyancing Handbook) are not optional as far as
Birmingham Midshires are concerned if they are ‘appropriate’. Most lenders will not require environmental searches (you should Check Part 2 of UK Finance Lenders’ Handbook to be sure), but you are obliged to explain risks and availability to the borrower.
Ground stability, Plansearch,flood searches as well as the searches listed in the question are optional – but only to the extent that you have allowed the borrower client to make an informed choice. Regardless of whether there is a mortgage, If you have not advised the client that these (and other) searches are available and what risks they cover, then you will be liable if the client suffers loss through not conducting one. Is this covered within your Terms of Engagement or Report on Title?
One search provider lists over 70 conveyancing searches – do you know what all of them are and when they may be relevant? If you are unsure as to which searches are appropriate based on location contact your search provider or call one of the leading search companies such as Searchflow.
Theoretically Birmingham Midshires could request or audit my files as I am on the
Birmingham Midshires conveyancing panel. What do I do if I receive such a request?
We can't comment specifically on
Birmingham Midshires. Many major lenders are now introducing ‘file auditing’ as standard practice in relation to completed matters. This raises questions of confidentiality in relation to the borrower and the purpose to which the results of such audits will be put. The starting point is to remember that the file does not belong to your firm, it belongs to the ‘client’. But, of course, we will normally have two clients – the buyer and the lender - and you will owe a duty of confidentiality to each. So basically, you have to separate the file and just send the lender the parts solely relating to themselves. But, of course, as this will basically be correspondence with the lender, mortgage instructions etc.
Check with your COLP but a firm should not send the complete conveyancing file without the buyer client’s express consent – and if she is in dispute with the lender she is hardly likely to agree. However, if the lender can establish a prima facie case of fraud, then you may be under an obligation to disclose the whole file.
The emerging convention is that lenders are including an authority to
disclose in loan application forms to counter this problem.
Mortgage
Express v Sawali, [2010] EWHC 3054 (Ch) indicates that such provisions
are valid. Please click
here for more information about that case.
Who do building societies include on their Conveyancing Panels?
In the same way that there is a unique Birmingham Midshires
conveyancing panel most building societies, operate a conveyancing
panel for solicitors and other conveyancers that the lender will
instruct. Terms and Conditions and criteria for inclusion on a
building society conveyancing panel vary from lender-to-lender. Having
CQS accreditation may be a requirement. Institutional lenders, such
as a building society, is a client and is entitled to instruct the
solicitor or conveyancer of its choosing (who, in turn, is free to
accept or refuse instructions). Therefore, if lender and borrower
cannot agree which solicitor or conveyancer should represent them
jointly, they would usually proceed on a separate representation
basis. The BSA have not published the equivalent of the UK Finance Lenders’ Handbook
Part 3s.
My firm is not on the
Birmingham Midshires conveyancing panel as well other banks.
My clients, who are getting a mortgage with Birmingham Midshires still want me to act for them regardless of the fact that we are not on the
Birmingham Midshires panel. Is it fine for me to use a firm down the road to act for
Birmingham Midshires on mortgage aspect of the conveyancing?
You need to be careful here as what you are intending may not be acceptable to the mortgage company.
It is possible that you (as a non-panel firm) or the mortgage applicant are not entitled instruct a panel firm of your choice. Many lenders make it clear to their panel firms that where a non-panel member firm is instructed by one of their mortgage applicants, the lender must appoint a panel firm to carry out its instructions and to liaise with the borrower's conveyancer.
You also need to make the costs implications and potential for delay very clear to your client.
In carrying out leasehold title investigations do
Birmingham Midshires conveyancing panel lawyers have to examine whether there is an absentee freeholder?
On the basis that your firm in is on the
Birmingham Midshires conveyancing panel and you are instructed by them in relation to a leasehold property, you must report to them if it becomes apparent that the landlord is either absent or insolvent. If
Birmingham Midshires are to lend, they may require indemnity insurance. In any event,you will need to check
Birmingham Midshires’s specific requirements. Notwithstanding whether
Birmingham Midshires will lend in such circumstances you still need to advise the borrower (unless you are acting for
Birmingham Midshires alone) as to the risks of buying a property with an insolvent or absentee landlord.
Our membership of the
Birmingham Midshires conveyancing panel was revoked but was reinstated on appeal, do I need to disclose this information on my CQS application?
We would recommend that you supply details of the date of removal, information on the reason for
removal, date of appeal and any reason given for reinstatement. This
should not adversely impact your firm’s application but gives the CQS team viability as to what has gone on.
Our practice is on the
Birmingham Midshires
conveyancing panel and scheduled to complete a purchase within the next few weeks. My file does not contain a Legal Charge for the client to sign.
Who do I contact at Birmingham Midshires to obtain duplicate documents?
You should contact Birmingham Midshires
to obtain standard documents. The The Council of Mortgage Lenders Handbook includes an express question for banks to set out who to contact to obtain standard documents.
Birmingham Midshires in their Part 2’s state:
Please remember to disclose your Birmingham Midshires conveyancing panel number.
