Same old story

Certain claims have a familiar ring to them. The persistent failure to advise clients adequately or at all on joint tenancy and tenancy in common issues relating to a property purchase is one such familiar claim. The problem had been highlighted on several occasions but it is still a constant source of claims.


By way of reminder to conveyancers:


  • If you do not ask, you will not find out. Your job is to obtain the requisite information from the clients to enable you to advise them. This will enable clients to make a informed decisions on what they want to do and instruct you accordingly.


  • Never make assumptions about clients. Just because they are husband and wife does not necessarily mean that holding the property as joint tenants is the most appropriate action. For example, they may have brought capital from previous marriages in unequal shares, and wish to preserve that capital for their respective children.


  • Be aware of potential conflicts of interest, or duress. This may be particularly relevant where an elderly relative is contributing a substantial sum to the purchase of a family home jointly with other members of the family. In such circumstances, you may not be able to act for all the purchasers, or indeed any of them.


  • Make a record of any instructions received or advice given. There needs to be an audit trail present on the file successfully to rebut any complaints or allegations of negligence on the part of the solicitor that may arise in the future should the parties fall out. Do not rely on the fact that it is your invariable practice to advise on these issues - you will be expected to provide more tangible evidence than that.


  • If you go to the lengths of seeking instructions and establishing how the property is held, ensure that where appropriate you draft the necessary deed, and then remember in all the haste of completion to get it signed. Also, make sure that the deed accurately reflects the needs of the client - do not simply rely on a 'standard precedent' produced at the push of a button. If you do not understand what you are doing, what chance is there for the client?


  • Ensure that the content of the deed is explained to clients, that they understand it, and agree that it accords with their instructions.


  • Ensure that the deed is stored safely if it is to be retained by you, or if sent to the client make sure there is evidence to this effect stored in your deed's register.



    • This column was prepared by AFP Consulting, a division of Alexander Forbes Risk Services UK