Guidance from the Law Society's conveyancing and land law committee on part II of the seller's property information form


The Law Society's conveyancing and land law committee is anxious to maintain and promote good conveyancing standards and practices not only for the present but also for the future.



Therefore, it is disappointing to note that following an article last year (see [2003] Gazette, 16 October, 43), the Society is still receiving complaints from both the profession and the general public that some solicitors are still refusing to complete part ll of the seller's property information form (SPIF).



There are only three questions to answer on part II. The questions that appear to be causing the problems are: 'Is the information provided by the seller in this form consistent with the information in your possession? If "No", please specify'; and 'Do you have any information in your possession to supplement the information provided by the seller? If "Yes" please specify.'



What is required of solicitors to reply to these questions? They need to check the deeds and title documents carefully, and this would in any event have been necessary before preparing the draft contract. In addition, solicitors need to read the file and any other relevant file the firm may have by checking the filing records and, following this, make any other reasonable and prudent investigations (see William Sindall plc v Cambridgeshire CC [1994] 3 All ER 932). One of these steps must be to check the answers given on SPIF l by the seller who, after all, is relying on his solicitor to act in his best interests.



Solicitors are not being asked to do anything more than any prudent solicitor would do in the normal course of following good conveyancing practice and acting in the best interests of clients. Solicitors are not being asked to guarantee the accuracy of the replies to those questions where they have no information.



If a mortgage is involved, the solicitor also needs to be mindful of the requirements in the Council of Mortgage Lenders' handbook. The lender's solicitor must make all usual and necessary searches and enquiries (see paragraphs 5.2.1 and 5.3 of the handbook). Checking the whole of SPIF must be part of these requirements.



Failure by a seller's solicitor for any reason to reply to part II would mean that the buyer's solicitor had failed to carry out all usual enquiries. Therefore, the buyer's solicitor would be unable to give a clear certificate of title to the lender that the title is good and marketable (see 5.4.1 of the handbook).



This might result in the mortgage offer being withdrawn and this would not be in the best interest of either the seller or the buyer. Failure on the part of the seller's solicitor to observe good conveyancing practice not only obstructs the solicitors for the buyer and lender from carrying out the obligations of a prudent conveyancer, but it also tends to bring the profession into disrepute.



The committee would again refer to the article in the 14 April 2003 edition of the Property Journal following the decision in McMeekin v Long [2003] 29 Estates Gazette, 120, which concluded that it should be 'standard best practice for solicitors acting for a seller carefully to review the form [SPIF] with their client and review the answers given before sending out the completed form to the buyer. Equally, it should be standard best practice for solicitors acting for a buyer carefully to review the completed form with their client'.



The committee agrees that this is best practice and strongly recommends that all solicitor-conveyancers should follow this practice so as both to observe best practice and to ensure that the solicitor is acting in the best interest of the client.



It has been suggested that the judgment in First National Bank v Loxleys [1997] PNLR, p211 supports those solicitors who refuse to complete part II. But that case did not make a decision on a solicitor's duty of care to the other side. It was held that whether or not a duty of care was owed could not be decided without reference to the disclaimer, and whether or not the disclaimer was valid depended on all the circumstances, and therefore was not capable of summary determination.



Lord Justice Nourse stated that he preferred not to express an opinion on the point since it was unnecessary to do so. The other two judges agreed with his judgment. Therefore, this decision does not support the failure to carry out good conveyancing practice by refusing to complete SPIF ll.



Both sellers and buyers want transactions to proceed efficiently and as quickly as possible. Solicitors should be acting in such a manner as to achieve their clients' aims. All solicitors should be mindful of the need to act in the best interests of clients and to carry out a proper standard of work, which must include observing good conveyancing practice.



If for some reason a solicitor feels unable to carry out good conveyancing practice on behalf of a client, the solicitor should consider if a conflict of interest has arisen as a result of this and whether he may properly continue to act.



The committee has carried out a review of the national conveyancing protocol and the TransAction forms. New editions of the TransAction forms have been available from suppliers of legal forms from 8 October 2004, and the Law Society will publish a fifth edition of the national conveyancing protocol this November. The changes to the forms and the protocol will take effect on 30 November 2004. One of these changes is to question 1 of the completion information and requisitions on title form, which will be revised to read: 'Property information - has the seller notified you of any change in the written information given by and on behalf of the seller prior to exchange of contracts or have you become aware of any changes? (This includes SPIF parts l and ll, SLIF parts l and ll, replies to pre-contract enquiries, and correspondence between us and, if appropriate, replies to any requisitions on title already raised).'



Solicitors may wish to consider adopting this amendment prior to the publication of the new edition of the protocol and forms.