Thursday, 29 December 2016

Metro Bank Updates CML Handbook Post 2 Instructions

Metro Bank PLC have just updated 15 sections of their CML Handbook Instructions. Some of the more notable section changes include : 

5.4.6- Does the lender accept search insurance and, if yes, what are the lender's specific requirements?

5.14.1- What minimum unexpired lease term does the lender accept?

5.20.1- Does the lender require me to report to them where the lease does not meet the CML minimum requirements for leases of roof space for solar PV panels?

7.3- Does the lender require a consent to mortgage from all occupants aged 17 or over?

Lawyers on the Metro Bank Conveyancing Panel in particular should take note. To see the changes click here

Friday, 23 December 2016

Skipton Update Adult Occupier Requirements

Amongst the recent changes to their CML Handbook Part 2 requirements Skipton Building Society have made a change to Section 7.3.

That section deals with the question: Does the lender require a consent to mortgage from all occupants aged 17 or over?

The old wording used to be: Yes, using our standard Form of Consent, where there is only one borrower.

That was straightforward and simple enough but the new wording reads:

Requirements apply where there is only one borrower.
See the mortgage offer for those requirements (and the documents to be used) on occupiers known to us.
You should report the existence of any other intended occupiers aged 17 or over not named in the mortgage offer to our Completions Team so that we may confirm our requirements.

What is meant by 'Requirements apply where there is only one borrower'? Is the lender here talking about both Part 1 and 2? One interpretation could be that if there is more than one borrower these requirements do not apply and one need not be concerned about adult occupiers. Can that be the intention of the lender? Perhaps my brain is numb after our Christmas party I can not fathom why Skipton would make reference to 'one borrower'

Are Authentication Badges the answer to Conveyancing Website Fraud?

Both the SRA and the Council for Licensed Conveyancers (CLC) are currently focusing their attention on cyber crime and property fraud. The CLC’s recent  fraud webinar was extremely informative. I would wholeheartedly recommend any lawyer or estate agent spending the hour watching the recording.

With property fraud avoidance in mind the CLC have recently announced an anti-fraud scheme for it’s regulated firms. This is a mandated scheme. The CLC are to provide each firm with a unique piece of code that will provide a CLC “secure badge” for the firm to display on their own website. The CLC will then monitor use of that code to ensure there is no unauthorised use of the secure badge (an assurance that I will come onto later).
The expectation is that consumers will be able to click on the badge to see information about the regulated firm on the CLC’s website.
The CLC have plans to promote the secure badge to consumers and is encouraging firms to do the same. My concern is that in promoting a secure badge, the CLC may run the risk of promoting misplaced trust. A badge image itself has no net security value - site badges are easily copied just like any other image on the internet, and anyone wanting to do something bad wouldn't hesitate to do so. And this is the crux of the issue: Even if a percentage of users click on the security badge, the majority will not read the report and any assurance benefit will be based on the the presence of the shiny and official image.
I am very surprised by the CLC’s rather bold claim that the security badge: ‘will significantly reduce the risk of impersonation online through cloned or copied websites and will stop fraudsters setting up fake firms that claim to be regulated by the CLC’. I have my doubts that a trust badge such as this is will significantly reduce the risk of impersonation. There is a counter-argument to say that that it may even increase impersonation, because, as noted above, most users won’t click and so may be fooled by a counterfeit badge. The claim ‘....and will stop fraudsters setting up fake firms that claim to be regulated by the CLC seems to be unnecessarily assured.  
If ‘secure badges’ prevented or even reduced fraud why are bank websites not festooned with them? I note that the Law Society - who have their own well documented history of software issues - have only ventured to claim the CQS badge is an indicator of quality, and not an authenticator.
The CLC Secure Badge scheme is be administered by Yoshki. Intrigued, I looked at Yoshki’s a list of customers expecting to see banks or high profile shopping sites. To be fair, I have not explored thoroughly each client, but I could not see any sites that even take credit card payments.  Do the CLC really want to use a technology addressing the threats faced by the 'The National Air Duct Cleaners Association (NADCA)' ? We are dealing here with the serious issue of major fraud rather than talking a lot of hot air (I had to get that pun in)
As mentioned above, the CLC mention that they : will monitor use of that code to ensure there is no unauthorised use of the secure badge’. It may be true that a legitimate website displaying a false CLC secure badge would get complaints and be forced to take it down. But we’re not worried about legitimate sites here — we’re concerned about fly-by-night sites pushing malware and phishing scam pages. Those are the kind of websites that would most benefit from stealing this type of badge. They’re already breaking the law, so violating the badge-provider’s copyright isn’t a problem for them. It is also not a problem to create a fake CLC page mimicking the journey taken by a legitimate law firm's badge. In any event, can the CLC be certain that they can get to a fraudulent site before any damage is done?
The one thing members of the public can trust is how the firm’s site is viewed by a web browser. The web browser already has a mechanism for verifying the identity and integrity of a website in the form of TLS/SSL.  Basic TLS support is now free when using the right technology partner, and arguably regulators should focus on mandating firms being at least TLS-enabled.  The next  and preferred level of authentication and assurance is for the website operator to purchase an Extended Validation (EV) Certificate for a few hundred dollars a year.  In this case, the firm’s website displays a green name next to your address bar, that confirms the identity of the website owner. For example, in the screenshot below, my web browser has confirmed this is the real HSBC  site. It’s important to note that locks and green name indicators shown by the browser in the address bar represent verifiable security assertions that the browser companies can make about the identity of the website owner.  In contrast anything that appears in the content area of an insecure website may be manipulated of “spoofed” by an antagonist.  In the case of an ordinary http:// website, any security badges might be lies produced by the site owner themselves or interposed by a third party. It’s not just an image that can be copy-pasted all over the Internet. An image that appears on an insecure web page can’t reliably authenticate anything on its own.

Starting January 2017, Google Chrome will begin labelling HTTP (non-TLS) pages with password or credit card form fields as "not secure," given their particularly sensitive nature. From a fraud perspective this means that many firms could have their legitimate websites look less trustworthy than a cloned/illegal site. Perhaps lenders, insurers, CQS and regulators should be insisting that firms are, at the very least, SSL enabled.

Monday, 19 December 2016

The Checklist - a Crucial Tool for Risk Mitigation in Conveyancing

Image result for checklist

Human error is inevitable — particularly in stressful conditions such a conveyancing where pressure is applied by various parties who are demanding a swift conclusion at a low cost.  Add to equation the fact that conveyancing has become more complex with a significant chance that a lender client can change their instructions mid-transaction - and you have a toxic mix. Some professional indemnity insurers might even regard it as a recipe for disaster.

It is well proven that levels of cognitive function are compromised as stress and fatigue levels increase , as is often the norm in certain complex, high-intensity fields of work. This can, and often does result in increased errors in judgement, decreased compliance with a client's  expectations and failure to follow standard procedures.

Areas such as aviation, aeronautics, and product manufacturing, in which safety and precision are paramount in service delivery, have come to rely heavily on tools to aid in reducing human error. An important tool in error management across all of these fields is the checklist, a key instrument in reducing the risk of costly mistakes and improving overall outcomes.

Checklists such as COMPLETIONmonitior have multiple objectives, including memory recall, standardisation and regulation of processes or methodologies, providing a framework for evaluations or as a diagnostic tool. However, regardless of the nature of the checklist, the principal purpose of it’s implementation is risk mitigation.

Thursday, 15 December 2016

Why conveyancers cant rely on referrals

Many marketing experts will tell you that as a conveyancing practice if you do great work you can build your firm based on referrals. But is that correct?
Not necessarily.
Ask yourself what motivates a client to to take the risky step of referring your firm to friends and family.
Even if you do a good job the questions that your clients will be asking themselves are as follows:
  • Do I want to be responsible if my friend has a bad experience? Will I get credit if it works out, blame if it doesn't?
  • Does sending more business in this direction help me, or does it ultimately make my conveyancer too busy, overwhelmed, or motivate her to raise her fees?
  • Will the my conveyancer be upset with me if the person I recommend proves to be difficult, or does not pay his invoice?
  • How does it make me look? Do people like me recommend conveyancing lawyers?
  • Is this difficult to explain, complex to understand, fraught with danger irrespective of how good my conveyancer is?
  • Does it look like I'm getting some sort of special treatment in exchange (excuse the pun) ?

Meeting your client’s expectations should be a given - even the SRA require that. Exceeding a client’s expectation should be the first step. In order to earn word of mouth, you need to make it risk free, and worthwhile to overcome the natural reluctance outlined above.

Sunday, 11 December 2016

CLC Firms Achieve Parity When it Comes to First Direct Panel

The Council for Licensed Conveyancers (CLC) has confirmed that the First Direct conveyancing panel is now open to Licensed Conveyancers on the same basis as solicitor firms that are members of CQS.

Transaction value limits are as follows:
  • Sole practitioners: up to £350,000
  • Two-partner firms: up to £2m
  • Four-partner firms: up to £3m
  • Separate legal representation is required for all cases of £3m and above.

First Direct has automatically added all CLC-regulated firms to their panel using information provided by the CLC, including the number of partners. The CLC have confirmed that they will keep First Direct informed of any change to a member firm.

Wednesday, 7 December 2016

Are Lenders Putting Conveyancers in a Stranglehold over Knotweed Obligations?

HSBC is the third lender in the space of a three week period to impose new requirements in relation to Japanese knotweed.

In an update to their answer to 5.4.4 of Part 2 of the CML Handbook HSBC's new requirements reads:

Japanese Knotweed - You will need to advise the Bank if you become aware that there is, may be or has previously been Japanese Knotweed identified on or near the property.

Where Japanese Knotweed has not been identified within the boundaries of the property to be mortgaged to HSBC, but is present on neighbouring land over 7 metres from the boundary, we will rely on the Valuer to advise whether the property is suitable security.

Where Japanese Knotweed has been identified within the boundaries of the property being mortgaged to HSBC or on neighbouring land within 7 metres of the boundary, but is more than 7 metres from the habitable space being used as security, we can only proceed if any damage to outbuildings, paths and fences is minor. We will rely on the Valuer to confirm whether a Japanese Knotweed Survey is required and will require the following:

• A fully paid up Treatment plan which has commenced with an appropriately qualified person or company such as an accredited member of an industry recognised trade association such as the Property Care Association and the Invasive Non-Native Specialists Association

• A minimum 10 year insurance backed guarantee can be provided on completion of the works.
Where Japanese Knotweed has been identified within 7 metres of a habitable space at the property (either within the boundary of the property being mortgaged to HSBC or on neighbouring land) and/or the Japanese Knotweed has caused serious damage to outbuildings, paths and boundary walls, a Japanese Knotweed Survey is required in addition to the following:

• A Treatment plan which has been fully completed by an appropriately qualified person or company such as an accredited member of an industry recognised trade association such as the Property Care Association and the Invasive Non-Native Specialists Association

• A Completion Certificate that confirms the weed has already been fully remediated with a minimum 10 year insurance backed guarantee in place
All documents relating to Japanese Knotweed will be provided to the Valuer for their confirmation that the property is suitable for mortgage security and whether there is any impact on the valuation of the property.

Monday, 5 December 2016

November 2016 Overview - CML Handbook and BSA Mortgage Instruction Changes

Key Statistics for November 2016 (England & Wales):
  • 35 lenders made changes to their instructions
  • 130 sections were changed by lenders
  • 5 lenders made changes to their minimum lease term requirements
  • 6 lenders made changes on more than one occasion in November
  • 3 lenders set out a disclosure obligation relating to Japanese knotweed
  • One lender set out new (and daunting) obligations in relation to independent advice for joint borrowers
For more information click here

Thursday, 1 December 2016

HSBC Introduces Independent Advice Requirements for 'Unequal' Borrowers

In a recent change to their CML Handbook Part 2 requirements, HSBC have imposed new obligations on their conveyancing panel when it comes to advising joint borrowers.

One might expect Section 8.1 (‘Does the lender allow me to advise any of the specified third parties?’) to focus solely on 3rd parties. Not so in the case of HSBC who adjusted their requirements to read:

Yes, provided that you are satisfied that you do not have any conflict of interest which prevents you advising the third party fully. If this is not the case you must arrange for them to see an independent conveyancer.

Direct charges - We require any borrower who is a legal owner of the property but who will not personally benefit from the loan either at all or equally with the other borrowers to obtain Independent Legal Advice where either the amount or portion of the loan from which they will not benefit exceeds £5,000.

Indirect charges – Where a Mortgagor of the property is not a borrower, we require that person to obtain Independent Legal Advice.

All cases - You must strongly recommend to any person intending to execute a Letter of Consent and Postponement by Deed to the mortgage that they obtain Independent Legal Advice

I am particularly surprised with the wording ‘We require any borrower who is a legal owner of the property but who will not personally benefit from the loan either at all or equally with the other borrowers to obtain Independent Legal Advice where either the amount or portion of the loan from which they will not benefit exceeds £5,000’.

It would appear that when acting jointly for HSBC and borrowers, it is necessary for any borrower, where the inequality of contributions is £5000 or more, to seek independent legal advice.

There is nothing new about the particular issue in that lawyers encounter situations where couples buying homes are contributing in unequal shares. Lawyers often advise one of the joint owners (who may not regard the mortgage as being anything to do with them at all) of their personal liability to the lender in any event. I suspect that lawyers do not generally regard such situations as demanding independent legal advice for the party who was not benefiting from the mortgage, but would always make sure that there was careful, written advice to the effect that both parties are equally liable to the lender.

Albeit that many lawyers may recommend that one of the joint owners with differing contribution (or a non-benefiting borrower) to take independent advice, this new situation is distinct for the following reasons :

  • Although it is best practice to recommend that borrower with unequal contributions take independent advice, in this HSBC situation the firm's liability in this area extends to the lender rather than being limited to the borrower clients
  • Outside of the HSBC situation one might recommend that one of borrowers take independent advice (and you may have something countersigned by the client acknowledging that advice). I suspect that many firms would feel as long as they recommended that  independent advice be taken that would suffice. In this situation HSBC require independent advice be obtained.
  • I have my doubts whether lawyers concern oneself with unequal contributions on a remortgage but this clause obliges the firm to go back to the original contributions.

Without wishing to overplay the impact of the change, I am concerned that the conveyancing lawyer acting is now be placed under an obligation to make even more detailed enquiries as to the relative contributions of joint owners. Hitherto, the very good lawyers would be careful in their advice about the ways in which property can be jointly owned, but have put the onus on the borrower clients to inform them if they feel that their relative contributions to the purchase price warrant something like a tenancy in common in unequal shares. I suspect that many lawyers had not considered it to be their duty to carry out a detailed investigation as to the contributions, but rather to alert joint owners to the options.

To see the latest CML Handbook Part 2 changes please click here