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Lenders urge Scottish solicitors to think again on conveyancing reform

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Published: 31 July 2013 | Author: Bernard Clarke

We are urging Scottish solicitors to reject proposals from the Law Society of Scotland (LSS) to make it compulsory for lenders and borrowers to be represented separately in the conveyancing process. In the overwhelming majority of cases, joint representation of the lender and borrower is more efficient, more cost-effective and clearly in the interests of consumers.

LSS members are due to vote in September on a proposal to make it mandatory for lenders and borrowers in the same property transaction to be represented by separate solicitors. We believe this is undesirable, and that joint representation should continue to be the norm in the majority of residential conveyancing cases. 

The LSS' existing rules, and our own Lenders’ Handbook setting out instructions for conveyancers, already allow for separate representation if it is needed – for example, where there is a conflict of interest. In response to the LSS’ proposals, we argue that:

  • There are clear benefits – in time, costs and efficiency – for the lender and borrower to share representation in most cases. Making separate representation compulsory will duplicate work and costs, and increase the risk of delays in transactions.
  • The LSS’ consultation document is unbalanced. It favours arguments for separate representation with little evidence to support assertions of routine problems with joint representation.
  • The consultation misrepresents our own views on separate representation, which we have never supported.
  • The position adopted by the LSS is in direct contrast to the Law Society of England and Wales, which supports joint representation as the norm.

In most conveyancing transactions, the interests of the borrower and the lender are closely aligned, so separate representation is neither necessary nor in the consumer’s interest. We urge the LSS to think again, and remain ready to engage in constructive discussions on the right way forward.