Deeds in the hands


Complaint is often made that a seller's solicitor has not complied with an undertaking given in response to requisitions on title relating to the transfer of documentation on the completion of a property sale.



Standard requisitions include a request to the seller's solicitor to confirm that completion will take place in accordance with the Law Society's code for completion by post. The code requires the seller's solicitor to send to the buyer's solicitor all relevant deeds and documents on the same day as completion. Transmission of documentation and confirmation of completion should take place by first class post or via the Document Exchange.



In an overwhelming majority of cases, completion takes place in this way and every conveyancing solicitor will be familiar with the procedure.



However, the prudent solicitor will ensure that a procedure is in place to check that when requisitions are answered, the deeds to the property are actually in the firm's possession. Practitioners will be familiar with principle 25.11(2) of the Guide to the Professional Conduct of Solicitors 1999, which confirms that a reply to requisition on title may amount to an undertaking. Most solicitors will assume that deeds requested from mortgage lenders on loan pending completion of a sale are safely at their office. In the majority of cases, they probably will be.



However, there are increasingly circumstances in which mortgage lenders choose to retain deeds until a mortgage account has been discharged. In such a case, solicitors are totally in the hands of mortgage lenders and should beware of giving any undertaking requiring compliance within a specific timetable. If the deeds transpire not to be in your possession, even if you thought they were, you will be unable to comply with any undertaking implied by the code. If the lender is dilatory in processing documentation, you will be unable to comply with any additional time- based undertaking provided to rectify the position within a reasonable period.



Principle 18.15(1)(f) of the guide directs that if there is to be any delay in compliance, 'the giver is under an obligation in conduct to keep the recipient informed'. A simple enough injunction, but one that is frequently ignored. Assumptions are often made that 'the buyer's solicitors will understand', even in circumstances where no information has been provided to them.



It is well worth checking to make sure you have all the documents that you need before replying to requisitions. In the event that you do not have the deeds, it is a simple matter to amend the wording of the standard replies to cover the position. In the event that a mistake is made, do not overlook the importance of principle 18.15(1)(f). If you tell the recipient of your difficulty, it is more likely than not that an understanding ear will be offered. However, saying nothing, or attempting to draw a veil over an innocent error that may have been made, often results in a misconduct complaint.



This column is written by a Law Society adjudicator