Conveyancing: Too busy to check?

But that must not stop conveyancers and their firms from ensuring they are aware of covid-related changes to law and practice and the ever-present risks to their practice.

Fears last year that the property market would remain significantly stunted because of lockdown restrictions proved unfounded, undoubtedly driven by the introduction in July of a stamp duty land tax (SDLT) holiday (currently due to end on 31 March 2021).

However, one of the risks for property lawyers is being too busy with client demands (and no doubt a scramble to complete many transactions before the end of March) to keep abreast of procedural changes that have been introduced precisely because of covid-19.

Here are some key things to note:

ID

Land Registry has drafted standards for digital identity checks (Safe Harbour Standard) and last summer, it endorsed the use of cryptographic combined with biometric data to check the validity of ID documents.

Some firms have already been using digital ID checks for clients, but the practical problems posed by the pandemic and social distancing are an issue. While the use of digital ID checks is a safer and more secure method of client due diligence, it has own risks. For instance, as set out in the proposed safe harbour, the conveyancer must ensure the evidence against which the cryptographic security features is to be checked is genuine. Care will still be needed.

Land Registry procedures

HM Land Registry’s PG80: Covid-19 is an important resource setting out its latest changes in relation to conveyancing and registration (it was last updated 11 January). Some covid-19 related changes have already been reversed while others remain in place “until further notice”.

Note that both the priority periods and cancellation dates in which a response to requisitions was required were extended, but both have been reversed. So now, in the case of applications received before 11 January, warnings of cancellation will be sent out giving 4 weeks to reply to requisitions. For applications received after 11 January 2021, firms have 20 days to respond, after which they will be sent a reminder of cancellation which will allow a further 20 days for a reply.

The guidance is unclear what Land Registry’s position in respect of applications received on 11 January, so if necessary a call may need to be made for clarification.

Mercury signings have been in place since May 2020 and Land Registry is still accepting transfers and other deeds for the purposes of registration, if ‘Mercury’ signed in accordance with specific requirements. Electronically signed transfers and certain deeds are also accepted if the requirements are satisfied, including the conveyancer’s certificate.

However, it is important to note that statements of truth and statutory declarations must still be signed in wet ink.

Ordnance Survey had suspended its surveying services but they are now operating during this third lockdown.

In the case of extensions – if the reason is covid-19, Land Registry says it will generally agree to an extension of a notice period or further period to object to one.

Stamp Duty

The issue of whether the SDLT holiday will be extended again has rumbled on for months. It is still expected to end on 31 March but, in the meantime, we will have the Spring budget.

Whether or not the chancellor will extend the date once again will soon be revealed, though it seems increasingly unlikely: at the time of writing, it was being reported that the Treasury was regretting introducing the policy as it is causing a number of problems.

Cybers risk

Even in normal times, conveyancing poses the highest risk area of legal work as far as fraud and cyber crime is concerned. The need to ensure you regularly review your policies and procedures, particularly with the prevalence of home/remote working, has perhaps never been so important.

Last November, the Solicitors Regulation Authority (SRA) reported that there was a three-fold increase in phishing scams during the first two months of the March 2020 lockdown alone (it has not collated more recent figures).

But despite the SRA acknowledging that firms and solicitors are operating in exceptional circumstances. It has made clear throughout the pandemic that it still expects firms to comply as best they can and follow the SRA principles; and to have contingency plans in place.

Business is booming for conveyancing firms, but don’t forget to watch your back.