It is important to mention firstly that although these cases are similar there are some subtle differences between P&P Property Ltd v (1) Owen White & Catlin (2) Crownvent Ltd t/a Winkworth ] and Purrunsing
Secondly they could be appealed.
One thing is certain though, the outcome of this latest case is definitely not of considerable relief for solicitors and conveyancers.
It confuses the issue of ID checks greatly.
On the one hand, the buyer’s solicitor should ask the seller’s solicitor to warrant that the seller is the genuine property owner, but on the other hand the seller’s solicitor would be unwise to do that because they cannot be 100% sure every time.
So what could happen now is that solicitors will get more enquiries about ID that they can’t/won’t answer, they will take on more risk and, no doubt receive more complaints when the transaction is held up because of an impasse.
A number of possible solutions have been suggested, including:
- Insurance
- More checks carried out by the Land Registry
- Banks offering a validation service
- The Law Society’s Conveyancing Quality Scheme giving clear guidance
- Regulating estate agents and getting them to properly identify the seller
On that last point, one solicitor has said: “In light of this case, is it not about time that the authorities regulated estate agents and introduced a requirement on them to properly identify the seller before they agree to market a property?
“That way the seller’s solicitor, the buyer and the buyer’s solicitor could rely on the due diligence carried out by the regulated agent.”
Comments (28)
Is it not estate agents who have first contact with the person(s) purporting to be entitled to sell any property ? If agents were bound by regulation to properly ID those people and carry insurance to cover any fraud then not only would this be an extra layer of protection for innocent buyers ( who agents market the properties to ) but it would also act an extra deterrent to would be fraudsters . In this day and age it is nonsensical to suggest that a property can be marketed for weeks / months without confirmation being available that the person(s) purporting to be entitled to sell the property is legitimately entitled to do so . If you asked the general public whether they think estate agents should have to do this I suspect the overwhelming majority would agree . Most people looking to buy properties would expect that the agents are sure that the person purporting to sell is entitled to do so .They would not expect that the matter goes as far as being handled by lawyers some weeks / months later before proper confirmation is available . It is not a question of who earns what fees ( whoever does this should be paid properly to do it ) , it should be a regulatory requirement that the person marketing the property for sale ( the agent ) is able to confirm the authenticity of the person(s) purporting to sell . That is simply logical and sensible .
Estate Agents should not sell a property for sale unless they take the same ID that the Government set out to identify one’s customers, as conveyancers already are:
https://www.gov.uk/government/publications/proof-of-identity-checklist/proof-of-identity-checklist
Then the conveyancer continues to do the same BUT both Agent and lawyer can disclose to each other what they have and that would add a further layer on top of rooting out bogus vendors…protecting both Agent, lawyer AND the rightful owner of the property.
Lawyers already obtain ID for their paltry average fee of £1,000, surely estate agents are taking ID too….so this is not a new discussion…just an idea both now disclose their copies to each other and see if there are any inconsistencies.
Estate Agent in Hi Vis Jacket, Armour, Helmet etc….. shouting at the HOMEowner over loudghailer….. “come out of your house with your hands and ID in the air!” ……..that should certainly be an Instruction Winner!!!
Now…… who will I get to Sponsor my Hi Vis Jacket?
Too often when regulators can’t see the wood for the trees they throw often worse than need be created problems back at industry to squabble with the right hand saying its down to the left hand and vice versa.
The powers that be need to be sensible as to reasonable expectations
Personally I would like to see the Seller’s Solicitor being made 100% liable for checking the ID of the seller and that the seller is the property owner. The Seller’s Solicitor can then take out insurance, with the cost based on their track record.
I get more protection when I buy a 2nd hand car……
It would not be a complete panacea but the Land Registry operates an alert system whereby a registered owner can be informed of any activity in respect of a property or land. But it is not ‘real time’. Why couldn’t the system be extended so that it is real time?
In this day and age when you have to jump through God knows how many hoops of ‘security’ when enquiring of the simplest and utterly innocuous thing in relation anything done online it beggars belief that LR is so far behind the game.
This seems to have been a fairly sophisticated operation and I suspect may have fooled even the most diligent agent or solicitor. Short of DNA I’m not sure where there are any guarantees.
Hate to say it, but HIPs? I frankly loved HIPs because the upfront fee cleared out all the time-wasters and chancers. It would also provide a vehicle to allow these checks of ownership. Frankly copying a passport and a utility bill (&c.) does sweet F.A. against Anti-Money Laundering, let alone proof of ownership.
So when is a HIP a genuine one? Think about it.
Surely the answer lies in the Seller’s Solicitor recognising when a transaction is higher risk (eg: property vacant, Seller wants money sent abroad etc) and undertaking further due diligence on the Seller – signature checks, probing questions that only the genuine Seller would know the answer to. We want to head off the fraud in the first place, not argue about who is responsible when it happens..
Fair point, Fairfax (see what I did:)
Hopefully my BLG member firms are aware about the higher risk transactions (I do repeatedly ram this stuff down their throats!).
Problem is, sometimes (as in Purrunsing) the fake passport used was a ‘genuine’ fake.
I have had a similar experience of someone trying to sell their council owned home. This is over 30 years ago when I was a mere slip of a junior neg. Any way I (and my bosses) got a little suspicious when the lady claiming to own the property came in looking for an advance on the sale of their property.
A quick phone call to the local council housing department soon put us in the picture, the police at the time weren’t interested when we told them.
I cant believe its thought in some circles that it should be the agents responsibility to check “legal” ownership. Surely “legal” ownership should fall on the shoulders of lawyers. The clue is in the title!
This isn’t all about checking ‘legal’ ownership. It is about checking that the ‘purported’ seller is who they say they are. Surely these fraudulent cases should be stopped as early as possible before everyone who gets involved loses time and money and suffers unnecessary stress and anxiety?
I get that Rob but surely out of the two companies it should be the responsibility of the lawyers to check that all is in order to legally transfer ownership to someone else. We, as agents, are there to find a suitable buyer at the right price and then to manage the process through to completion.If not, you could argue that the lawyers should at some stage get involved with what price the client is selling for to see if its in line with market conditions, available buyers etc etc.
We both have our own jobs and the lines shouldn’t be blurred.
Rob is trying to proportion blame towards agents? for conveyancers that are supposed to do it. Nonsense for everybody to do the same job. Do it right the first time and no one else needs to get involved. Professional criminals will have all sorts of documents to prove false ownership (including original or duplicate documents) and is beyond the capability of agents and their resources. MLRegs currently require the agent to tell the authority but take no action for example. If conveyancers want to protect themselves then the onus is upon them to do something about it, possibly an insurance policy just like agents need CMP.
” …………. cases should be stopped as early as possible before everyone who gets involved loses time and money and suffers unnecessary stress and anxiety?”
Couldn’t agree more but agents do not have access to the resources to make checks, identify forged documents and the consumer market prepared to wait that long when ….. the buyers conveyancer has a duty to do it all again! at that later and unnecessary stress and anxiety time?
Who gave the vending solicitor the title deeds? I have no comprehension how the title deeds got from safe keeping somewhere, all the way through a conveyance to safe keeping somewhere else.
I understand the whole process of marketing, sale, even searches on behalf of a bogus vendor but where/how did the title deeds the deeds end up with a solicitor.
Why is the purchaser suing someone other than their own conveyancer. Did they do the conveyancing themselves by any chance?
I am afraid you are living in the good old days Robert, when real ‘title deeds’ existed. Anyone can get a copy of anyone else’s ‘title’ now by applying to the Land Registry.
Give me your address and postcode and I can probably tell you exactly who owns your property, how much you paid for it, and when and what loans or other debts are attached to it.
No, they didn’t do their own conveyancing.
Thank you Rob you made my point for me. That is where there the breakdown of the system lies ; Land registry. They are woeful amateurs at anything digital, out of their depth, cases like this are the consequence.
There should be no entitlement to all that information. I know of someone who was in an abusive marriage which ended in divorce one pary used the information available from Land registry to contest the divorce settlement and embark on a continued campaign of abuse
There is no 100% way to stop this fraud unless you start taking DNA! One can only do all the checks and based on that information make a judgement to proceed or not. Those checks have always been the responsibility of the purchasers conveyancer. Should it go pair shaped then we have laws to punish those that are dishonest and regulations for those that don’t do their job properly….. but as often the case, the reality is after the horse has bolted.
You’re right Woodentop that’s way I can’t follow them chasing the vendor’s solicitor not their. Don’t they have PI cover!
We’ll probably never know why they didn’t go after their own conveyancer for it is they who they have a contract with and you would think they have insurance cover …. possibly not?
It would have been good to have asked this one solicitor who is keen to put all the burden on estate agents, exactly what would he like us to do, what would satisfy him that estate agents have validated the owners identity.
In the ever increasing rush to bring properties to the market, I have no doubt that homeowners will be more than happy to wait the necessary time it takes for us to confirm their ownership, and also that they are happy to cover the cost of such validation. I am more than happy for us to be regulated or whatever, but only if the burden falls equally between all parties involved in the housing market. Solicitors, mortgage companies etc also have a part to play in this, and cannot always look to us when things go a little wrong.
When i say a little wrong i am talking generically, not in this case when matters when horrifically wrong. I am always curious/concerned when an owner states they want a quick sale
Presumably carry out the ID checks etc that solicitors and conveyancers have to carry out, only much earlier on in the process. You don’t need legal experience or knowledge to do that.
If are homeowners are told that people are parting with vast sums of money and end up not owning a home, they might understand the importance of these checks.
Solicitors and conveyancers would be more than happy if “the burden falls equally between all parties”. At the moment most of the burden appears to be on their shoulders. In many cases for a measly few hundred pounds in fees.
Mr Hailstone
“At the moment most of the burden appears to be on their shoulders. In many cases for a measly few hundred pounds in fees.”
1. The burden was placed upon them by the Government of the day.
2. It is the solicitors/conveyancers who set their own fee levels. They are free to charge what they think they are worth for the work involved in the process – including that forced upon them by our masters in SW1A.
Agents are introducers, conveyancers are the sellers. The onus has always been on the conveyancer to get his side right …. period and that is what the judgement has come out with. This was more a case of a lawyer trying to get his client compensation from others if he could and
the solicitors statement of “In light of this case, is it not about time that the authorities regulated estate agents and introduced a requirement on them to properly identify the seller before they agree to market a property?” Err we already have regulation requiring it and clearly they should know that and law firms should stop the good old fashioned …. blame someonelse for their own failing. I have sympathy for the property owner but the buyers conveyancer is where the buck stops for it is they that completes the sale and have the duty of care set in stone.