As a humble Residential Conveyancer it never ceases to amaze me how much change there is in conveyancing practices. There is a misconception that the boring conveyancer operates in a world that is governed by antiqued legislation and little change. This is very far from the reality.
As an illustration, if we look at what changes have happened since we entered the new millennium, it becomes clearly evident that all conveyancers have had to adapt to major changes in recent times. The first of which was the introduction of Compulsory First Registration (CFR) by the Land Registry. In a straightforward purchase there were usually no major difficulties but with more complicated titles the certifying of the title can be tortuous. What has really affected us are the unforeseen problems with maps and trying to rectify an encroachment, post completion, even when the physical boundaries have not been altered for years. Initially I had dozens of transactions where mapping problems appeared. Eventually these problems were thankfully resolved and I learnt quickly to pre- requisition a Mapping Certificate which at least alerts you to the problems before you complete.
Not so long after CFR was rolled out province wide, the Stamp Duty Land Tax system was thrust upon us. We then had to tackle bulky forms that if they were not completed perfectly were unceremoniously rejected and you could then be hit with a penalty of £100 for your failure to complete the form on time. There was also the added burden of coping with new time limits which if you missed, the penalty notice is not only sent to you but embarrassingly to your client! What was so frustrating was that the forms are completely inflexible with no room for the unusual transaction. If you sought guidance it was never readily available and while you tried to get an answer to a complicated matter you could clock up more penalties and even interest., So we continued to be tax collectors but also on occasions we felt obliged to pay the penalties to maintain a good client relationship.
Again solutions to these difficulties emerged. On line applications and the immediate issuing of the SDLT Certificate were an enormous help. Also instead of worrying about time limits, it was better to apply for the Certificate immediately upon completion and not to wait for the 28 days to pass. This will also help you in keeping within your time limits to register the title post completion.
We did have a few years without any major change but this stability has gone in the last few years. Firstly, the Private Tenancies (NI) Order 2006 (PTO) was introduced. The impact of this legislation on the very difficult area of private tenancy has not yet been fully assessed. Maybe as the “buy to let” market has disappeared it may not have had much of an impact. Anecdotally I believe our profession may not have fully embraced the changes in the PTO and are not advising their clients of the requirement to get a Certificate of Fitness or the requirement to properly notify tenants and provide a rent book within the 28 day time limit. The “buy to let” purchaser needs to be informed of these requirements from the outset of the transaction and a simple paragraph in the Contract and Title advice letters is sufficient to protect the conveyancer.
I also suspect the conveyancer may have stopped checking with the appropriate Registry if the property is rent controlled or protected. This still needs to be done. It is still very confusing as to which register you need to check. It used to be the Housing Executive and local council but now the register of the Housing Executive has been taken over by the Rent Officer of Northern Ireland. It’s easy to do it on line and at present it’s free.
If you ignore the PTO and a problem arises the impact is enormous as the rent will plummet and your client will not be pleased.
The recent introduction of the requirement to have an Energy Peiformance Certificate (EPC) may not have been too disruptive provided you don’t forget to ask for it from the vendor. Once received do send a copy to the client and advise them that the recommendations are not yet compulsory. I am also indicating that these recommendations may become compulsory as new European Directives may be rolled out to increase energy saving requirements.
There have been some teething problems with some unqualified assessors providing EPC’s for newly constructed dwellings when they are not qualified to do so. Also it’s easy to forget that EPC’s are now needed for commercial and rental transactions.
Bringing things up to date since the last issue of the Folio I have noticed two new problems have emerged and both are related to water. As a North Down practitioner flooding is not a widespread problem but in other areas like Enniskillen it could be. It is therefore prudent to get a Flooding Map from the River Agency at the start of your proposed purchase.
Someone in the Department of the Environment (DOE) recently decided to change the wording of the reply to one of the enquiries in the DOE Property Certificate. Not in all certificates but in a significantly high percentage of the same it now states in response to whether there is a main sewer serving the property “sewer transverses the property”. The significance of this is that we now have to request a further sewer location plan and letter from the Water Service. Yes there is an extra cost which is £16.10. Initially this wasn’t a major problem but like a lot of conveyancing practices it may evolve into a much bigger issue. The difficulty is the wording in the DOE letter attached to the plan.
In the current fickle market the extremely nervous purchaser can be spooked by the fact that there is a main sewer close to the property and you can’t build over the sewer. What a lot of conveyancers fail to realise is that you can apply and possibly obtain planning permission to build over the sewer. Firstly, if you are granted permission there will be Special Conditions and rights granted in favour of the DOE to repair the sewer if required. Secondly, the sewers haven’t just appeared. The sewer map is illustrating where the location of the sewer is, which is most likely to have been exactly the same location of the sewer from when the house was built.
What amazes me is how such a small change can escalate so quickly into a new problem. Why did this change take place? Certainly the vendors are being penalised for this as there is the extra expense for the letter and plan. Why can’t this be provided as part of the DOE Property Certificate? This appears to be another government expense being unnecessarily added to the vendor’s expense. At least we don’t have Hip packs that were introduced in England and Wales which adds hundreds of unnecessary pounds onto the vendor’s expenses.
As for new development transactions, in very recent times we have had to provide or request completed CML incentive forms (even if there is no incentive), the Buildmark cover note and of course the EPC (for new dwellings and not the standard one for existing dwellings). Of greater concern has been the worrying difficulties that have arisen because of the current property slump and off plan purchases with long stop completion dates.
Clients may have genuine funding difficulties and proceedings may have to be issued by the
developers if completion doesn’t take place. The conveyancer may have to provide advice on the
terms of the agreements and also advise on the remedies that may be available for breach of the
same. Unusual times for everyone but particularly worrying and stressful for those at the coal face of these new actions in the Chancery Court
The speed of change will accelerate as we come to the end of the first decade of this millennium. We should all now have taken e-registration in our stride but is E-conveyancing the next major change? A consultation paper has recently been issued on this topic by the Land Registry. If it is, let’s hope that the system has enshrined a protection for purchasers to “cool off’ . As speed isn’t necessarily the goal and can be dangerous in what is often the biggest transaction of the purchaser’s life. Also if we do need to improve our current systems let’s not rush the changes without proper consultation to give us all a chance to catch up with what has already been introduced in the last ten years. In addition to these changes in conveyancing, there is the current ongoing review of Land Law and Conveyancing by the Northern Ireland Law Commission. What this will produce for the conveyancer nobody really knows yet, but they should be able to cope as they are used to continual changes and have had to adapt many times in recent years.