An Open Letter to: Ian Jeffery, CEO of the Law Society
Dear Mr. Jeffery,
We write to you on behalf of the Property Lawyers Action Group (PLAG), an informal non-profit group of property lawyers who have become increasingly concerned by the way in which the legal profession is heading.
Our recent focus has been on National Trading Standards’ Estates and Lettings (NTSELAT) Material Information (MI) “Guidance” and the potential disastrous implications for lawyers, estate agents, ‘consumers’ (clients), and indeed the property market generally. You may be aware of our recent letter to the head of NTSELAT, Mr. Munro, which was recently publicised in the Law Society Gazette:-
https://plactiongroup.co.uk/2024/03/18/an-open-letter-to-james-munro-at-national-tradingstandards/
It suffices to say that PLAG remains opposed to MI principally for the reasons set out in that letter, and indeed, we are likewise opposed to the Law Society’s (LS) announcement of the Fifth Edition of Form TA6.
However, opposition to the Fifth Edition of the TA6 has not been confined to our members nor indeed solely to opponents of MI. From what we have observed, the changes have been widely condemned by opponents, proponents, and ‘fence sitters’.
The whole focus of CQS for many years has been to discourage the practice of raising enquiries about every conceivable matter that could possibly affect a transaction, in favour of fewer targeted, relevant enquiries. In the interests of streamlining conveyancing and reducing the time and cost of transferring title to land CQS has strongly discouraged solicitors from raising numerous enquiries that may not be relevant. The new TA6 and TA7 forms flies in the face of this policy, with no tangible benefits, only increased cost and complexity.
This leads us to our first question. Why did the LS not consult with its own members before implementing such fundamental changes?
We are of course aware that the LS has been consulting with NTSELAT as well as the members of the steering group behind the MI guidance; however, the LS has no mandate from its members to impose the outcomes of these consultations with third party organisations. We have held concerns regarding the LS’s lack of consultation for some time. For example, in the case of climate change guidance there was likewise no consultation. However, the implementation of the Fifth Edition of the TA6 appears to be the most flagrant disregard for the LS’s membership to date. This is a habit that must be broken, or else the LS risks a revolt by its members.
We are aware that Licensed Conveyancers are also displeased that there was no consultation with them.
https://thenegotiator.co.uk/news/conveyancers-complain-about-law-society-changes-to-property-forms/
Whilst Licensed Conveyancers are not members of the LS, this lack of basic diplomacy on the part of the LS risks driving a wedge between conveyancing Solicitors and Licensed Conveyancers, the latter of whom mostly adopt the LS (CQS) practices and standards out of courtesy to CQS members. From a practical standpoint, conveyancing relies heavily on firms adopting similar procedures and standards, and the changes announced by the LS therefore risk making transactions considerably more difficult for this reason alone.
Indeed, we have already observed some non-CQS lawyers indicate that they may refuse to adopt the new edition, and we cannot fault them for this. Their clients’ best interests must clearly take precedence, and the majority of sellers will not be “Traders” for the purposes of the Consumer Protection from Unfair Trading Regulations (2008) (CPRs) and therefore have no obligation to comply with the same whatsoever, let alone the guidance.
Our second question therefore, is did the LS take legal advice regarding PLAG’s comments in relation to the criticisms concerning potential legal overreach? If so, will it publish that advice? The LS clearly did not await Mr. Munro’s response to our letter as no response has been received to date, and it likewise cannot claim to be ignorant of these concerns.
We are aware that we are not the only ones voicing these concerns as we have been made privy to the comments of Mr. Andrew England-Kerr who has expressed in very clear terms the potential for both civil and criminal liability for practitioners in light of the guidance and has been in direct correspondence with the LS in this regard.
It is fair to say in our opinion that there are far too many questions at this stage surrounding the legal status of the guidance and potential implications and the implementation of the Fifth Edition of the TA6 was clearly rushed and ill-advised.
Frankly, we also do not trust some of the organisations which comprise the MI steering group. We have been unable to ascertain who funds them. It seems there may be vested interests intending to benefit from these fundamental changes, which we are concerned will have the effect of and may very well be intended to marginalise property lawyers. Implementing the new TA forms will undoubtedly give the unregulated sector greater control over transactions. Such firms are already springing up offering “Home Packs” – meaning sellers may be disclosing information without the benefit of legal advice that may permanently undermine or
frustrate their sale.
For the reasons set out above, the implementation of the Fifth Edition of the TA6 must be indefinitely postponed until the following conditions have been met:
Mr. Munro must respond to PLAG’s concerns regarding the Ultra Vires status of the guidance.
The LS must obtain advice regarding these concerns as well as those raised by Mr. England-Kerr and publish that advice.
The LS must fully consult with its members as well as the wider conveyancing sector and undertake not to make the new TA forms mandatory or take any further steps in connection with MI until that consultation has concluded.
Depending on the outcome of the advice that the LS has obtained, it must provide comprehensive guidance to its members on how to avoid or minimise any additional liabilities posed.
The LS must confirm that it is satisfied there is no conflict of interests present in the members of the MI steering group and if it cannot give that confirmation it must withdraw from this group.
The LS will be aware that the Commons Levelling Up Committee has announced an inquiry into the Home Buying and Selling Process. This committee will make recommendations that will no doubt leave its mark on the new administration after the next election.
Please would the Conveyancing and Land Law Committee that introduced and is monitoring the use of the new TA6 and TA7 forms (the Committee) confirm urgently that an extraordinary meeting of the Committee will be convened to consider the response of the profession to this unwelcome initiative.
In light of this please further confirm the Committee will prepare a considered response on behalf of the Law Society and its members both to the MI initiative and to the other more urgent issues impacting the home buying and selling process.
Yours sincerely,
02.04.2024
