A Wobbly Conveyance? Peeking through the stamp duty window

Residential conveyancing lawyers are not paid enough. There is a statement to get attention. 

My credentials for writing on conveyancing. First, I moved home in 2021. I almost sense a Punch cartoon: 'The man who moved home before the end of the Stamp Duty window' [as was at the time].

Second credential: my lawyer practice area was commercial property. Although the deals were different, with lots of impressive noughts on them, the underlying law and practice were the same. I also did the odd bit of residential conveyancing before becoming a partner, essentially for commercial clients of the firm.

Back to fees: as an agent charges the seller, I can only speak definitively for the sale element on my move. Here my lawyers (whose work I was very happy with) charged 22% of what the agents' charged. I cannot do the exact equivalent for my purchase, but assuming that the sale agents there charged the equivalent percentage fee, my lawyers' fees would represent 26% of the agents' fees (the difference representing the greater amount of work on a purchase).

Now to the disparity. Here it would be easy to get into social media shouty stuff, so I will confine myself to what I think might be the agents' core rationale - they find the deal; the lawyers document it, the latter being, so the narrative is often presented, a downstream activity centred on filling in pieces of paper.

Lest my angle be thought a subjective rant, I will add words from the Money editor of The Times last Saturday:

'The costs of moving house are all out of kilter. Why on earth do we pay so much to estate agents when it's solicitors and surveyors who do all the heavy lifting?'. [Nomenclature for the confused: the surveyor reference is to those, invariably members of the Royal Institution of Chartered Surveyors, who do the pre-purchase survey report]. 

To which I might add, why pay less relatively to the people who take the insurance-backed responsibility to ensure that what for most is the largest capital outlay in your lives is done so as to give you secure ownership and a legally marketable asset for the future?

Expressing the problem in simplest terms, the killer for lawyers is the multiplicity of interactions that they need to do in order to exchange and then complete on sale/purchase, involving their clients; the other side's lawyers; agents; surveyors; lenders; mortgage brokers; search agencies; HM Land Registry; HMRC; sometimes managing agents etc etc. 

An opportunity for a massive re-engineering of the process? Some have tried, and continue trying, but you can only engineer what you can control. What about all local authority search information being combined into a single database where an instant report comes back? Ha ha to that, from anyone who knows how computer systems work in practice.

I might be seen here as defensively supporting my colleagues. Not entirely so. I believe that residential property lawyers as a whole do not sell well enough the benefit of what they deliver. Agents are smarter, and proof of that is through the advent of the 'progressor", a role more recently decoupled from the core agent job description, the person who harries everyone in sight, especially the property lawyers, to get the deals through. That is attractive to clients, and whether the progressor does or does not always understand the legal technicalities of what they are discussing, is immaterial to those who merely want to 'move home'.

I do not wish to tar the reputation of excellent agents and excellent lawyers. I can think of instances where lawyers have battled valiantly against every obstacle put up; I can think of instances where agents have shown extraordinary care and sensitivity with clients. But the fact remains that the residential conveyancing process is wobbly, and thus my title. 

And the stamp duty window? IMHO it has overall been a curse rather than a benefit, creating unrealistic expectations for the sake of the Holy Grail of max. £15k tax saving. The firm acting for me did a very wise thing - when they saw what might be coming in the minds of clients they put out an upfront statement that for any instructions after that date they could not guarantee completion in time for the end of the window. That was not wimpy defensiveness, that was managing clients' expectations. And don't forget that the Solicitors Code of Conduct requires a firm to provide a competent service - if you think that you could only push the deal through against all odds by exposing the client to inappropriate risk, then you should not take on the job. 

And finally - lawyers please drop the 'conveyancer' label. The conveyance (almost universally now the transfer), is the document that formally transfers property ownership from one person to another. OK, agents are 'estate agents', and do not spend all their time dealing with estates of any definition, but we remember only 'agent'. Conveyancer smacks of quill pens and Jarndyce v Jarndyce. Those of us on the commercial side had dropped 'conveyancer' by the end of the 1980s. You are residential property lawyers - be proud of it!

I suspect that I am being modestly provocative, but I have tried to fall short of being polemical. I welcome any comments, whether in support, or to take me on in argument, or otherwise.

The writer is a former commercial property partner at City law firm Nabarro (now part of CMS). He writes in a personal capacity.