Mortgage Agency Services Conveyancing Panel Information

Mortgage Agency Services make no specific obligation to carry out any of the searches listed. The UK Finance Lenders’ Handbook simply states that ‘you must ensure that any other searches which may be appropriate to the particular property, taking into account its locality and other features are carried out’.

Remember that most ‘less usual searches’ (as described in the Law Society’s Conveyancing Handbook) are not optional as far as Mortgage Agency Services are concerned if they are ‘appropriate’. Most lenders will not require environmental searches (you should Check Part 2 of UK Finance Lenders’ Handbook to be sure), but you are obliged to explain risks and availability to the client.

Ground stability, Plansearch,flood searches as well as the searches listed in the question are optional – but only to the extent that you have allowed the borrower client to make an informed choice. Regardless of whether there is a mortgage, If you have not advised the client that these (and other) searches are available and what risks they cover, then you will be liable if the client suffers loss through not conducting one. Is this covered within your Terms of Engagement or Report on Title?

One search supplier lists over 65 conveyancing searches – do you know what all of them are and when they may be relevant? If you are unsure as to which searches are appropriate based on location contact your search provider or call one of the leading search companies such as Searches UK.

We can't comment specifically on Mortgage Agency Services. Many major lenders are now introducing ‘file auditing’ as standard practice in relation to completed matters. This raises questions of confidentiality in relation to the borrower and the purpose to which the results of such audits will be put. The starting point is to remember that the file does not belong to your firm, it belongs to the ‘client’. But, of course, we will normally have two clients – the buyer and the lender - and you will owe a duty of confidentiality to each. So basically, you have to separate the file and just send the lender the parts solely relating to themselves. But, of course, as this will basically be correspondence with the lender, mortgage instructions etc.

Check with your COLP but a firm should not send the complete conveyancing file without the buyer client’s express consent – and if she is in dispute with the lender he is hardly likely to agree. However, if the lender can establish a prima facie case of fraud, then you may be under an obligation to disclose the whole file.

The emerging convention is that lenders are including an authority to disclose in loan application forms to counter this problem. Mortgage Express v Sawali, [2010] EWHC 3054 (Ch) indicates that such provisions are valid. Please click here for more information about that case.

One might ordinarily expect Mortgage Agency Services via their Part 2 requirements to address this but the Handbook makes no mention on time frames. Do look at the Terms of Mortgage Agency Services’s Conveyancing Panel Appointment that you are bound by. For a number of banks these Terms include a provision along the following lines: ‘To keep us informed of the reasons for any delay in your being able to send the title deeds and documents we require to us within 3 months of completion or evidence of proof of registration within that period. (We will send reminders if the deeds have not been received but will not acknowledge receipt of deeds’ It is important to keep Mortgage Agency Services updated. Law firms can often compound their problems by not communicating with the lender when there is a delay or problem.

What you should do largely depends on the reason that your firm has been removed off the Mortgage Agency Services conveyancing panel. The top 3 reasons are as follows:

1. lack of transactions
2. the lawyer is a sole practitioner
3. as part of the HSBC panel reduction.

In these three circumstances it is unlikely that you would expected to take any action. Disclosure and other compliance considerations are more likely to be relevant if the reason for removal is due to breaches of lender requirements or allegations of fraud or negligence. Whether the reasoning should trigger a disclosable 'material' breach will depend on the firm and the circumstances around possible failures to comply with the SRA Authorisation Rules, and the SRA will judge each case on its own merits. Factors such as the detriment or risk of detriment to clients, the scale of the issue and overall impact on the firm will need to be considered in deciding whether a failure is 'material'. As the COLP you will need systems to identify patterns of breaches. Even if you don't consider there to be regulatory implications the firms COFA should give some thought to whether she/he needs to take any action as result of being removed from the Mortgage Agency Services conveyancing panel.

Your insurance brokers are your best port of call to address this question. The chances are that on the basis that you have not been removed for fraud or negligence reasons that there will be little or no impact. The main reason why a firm would be removed off of a lender panel is due to low volume of conveyancing cases although there may be a number of criteria for Mortgage Agency Services solicitor panel membership. Please remember that it is always important that you complete your insurance forms accurately.

You would be advised to contact Mortgage Agency Services to obtain standard documents. The CML Handbook includes an express inquiry for lenders to reveal who to contact to obtain standard documents. Mortgage Agency Services in their Part 2’s state: You will need to quote your Mortgage Agency Services conveyancing panel reference.