Why do I need a solicitor to buy and sell a house?
By Paul Bibby, managing partner and head of property at MSB Solicitors LLP.
It is a criminal offence for an unqualified person to draw up or prepare a contract for sale, transfer, conveyance lease or mortgage relating to land for a fee. Solicitors are qualified to undertake work called conveyancing, which is a mixture of land law, contract law and trusts.
There is a National Conveyancing Protocol which must be followed when you buy or sell a house. Your solicitor will ensure that this is adhered to or varied as required for the specific transaction and will ensure your interests are protected at all times while dealing with any complex issues that may arise throughout the transaction.
Selling your property
When you sell a property, your solicitor has the responsibility of certain things including:
• Checking the title to your property
• Drawing up the contract for sale
• Dealing with any issues raised by the buyer’s solicitors
• Completing the sale
• Ensuring that any existing lending against the property is redeemed on completion.
In order to satisfy the buyer’s solicitors that any current mortgage on the property will be removed at completion, the seller’s solicitors are required to provide undertakings. Undertakings are promises made by solicitors to do something and failure to honour an undertaking is professional misconduct, which carries a severe penalty and can lead to the solicitor being struck off and unable to practice. The undertakings provided by solicitors when buying or selling a house are a fundamental part of the conveyancing procedure. An unqualified person cannot provide an undertaking.
Buying a property
When you buy a property:
• Your solicitor will check the title to the property at the Land Registry and ensure it is not defective in any way.
• They will raise enquires on matters they feel appropriate depending on the information contained within the documentation provided to them by the seller’s solicitors.
• The buyer’s solicitors will request searches and these will include a local and environmental search.
• There are extra searches that may be required depending on the locality of the property.
If you buy a property with a mortgage, the solicitor who acts for you will also act for the mortgage lender in order to check their requirements and arrange for a draw down of your mortgage funds. Drawdown mortgages are usually a feature of a flexible mortgage that gives the borrower a guaranteed option to borrow additional funds at a later date, without having to undergo the formalities of making a further borrowing application.
Solicitors are required to give undertakings in the process of drawing down your mortgage funds and if you are not represented by a solicitor, the mortgage lender will not allow you to draw down your mortgage advance. If someone was to represent themselves, or an unqualified person was representing a client for free, the mortgage lender would instruct their own firm of solicitors to deal with this part of the transaction.
Completing the transaction
When a purchase transaction has completed, the buyer’s solicitor will ensure the new owners are registered at the Land Registry together with any mortgage lender.
All solicitors are obliged by law to carry professional indemnity insurance. If for any reason your solicitor made a mistake which led to you suffering loss then the insurance policy would repay that loss.
Solicitors are regulated by the Solicitors Regulatory Authority and have to follow the rules laid down by the Solicitors Code of Conduct 2007. They are governed by strict rules on how they should deal with client’s money, so you can be sure that your money is entirely safe throughout the transaction.
Disclaimer: The views expressed in these articles are the view of the author only. No liability attaches to you for any advice given in the absence of a written retainer. If any issues affect you, you must instruct a solicitor and take appropriate legal advice.
Paul Bibby is managing partner and head of property at well-established Liverpool-based law firm MSB Solicitors LLP.
Having qualifying as a solicitor in 1986, Paul has a wealth of experience in all aspects of property law.
He specialises in business acquisitions, sales and commercial leases, and property development through flat sales and plot sales.