Ethics & Professional Conduct In Property Practice Flashcards
What should you do if presented with a legal document incorrectly prepared by an unrepresented party?
Never point out the defectives but advise them to seek independent legal advice
If a party is unrepresented in registration of land what does a solicitor need to obtain from them despite them not being their client?
ID
When can an undertaking be withdrawn?
Only by agreement
Does an undertaking need to be in writing?
No
What must you always be in when giving an undertaking?
Control
What do you obtain before making an undertaking?
Consent
What are proper costs and proper and reasonable costs mean regarding undertakings?
Common law states
Proper costs - costs properly incurred
But if the actual cost incurred is less then u should use:-
Proper & reasonable costs - properly incurred AND reasonable
What steps are needed for a contract race?
- Obtain consent to disclose contract race to all in writing
- If no Consent - cease to act
Can u act for a buyer and seller in contract race ?
No
Can u act for two or more buyers in a contract race?
Yes as they are competing for the same objective but need to satisfy requirements
What are the two conflict of interest exceptions?
- Competing for the same objective
- Substantially common interest
Acting for two buyers under the competing for the same objective examples (4)
- Residential straight forward
- Auction purchase
- Insolvency
- Bid or tender process
What examples exceptions apply for a COI?
- Commercial property work
- Business law & practice
Can a solicitor act for both buyer & seller?
Yes but it’s high risk of conflict or significant risk of conflict
Acting for a buyer and seller at arms length will that likely be a conflict?
Yes
Acting for both parties when land is gifted between connected parties is it likely to be permissible?
Yes - substantial comment interest exception
If you decide to act for both parties and a conflict arises down the line what must a solicitor do?
Cease to act for both parties as confidentiality overrides disclosure
Can u act for joint buyers?
Usually yes as they have the same interest acquiring good marketable title
Make sure no duress or undue influence
Can u act for lender and buyer?
Yes usually in a straightforward residential transaction
Name 3 ways acting for a buyer and lender may be a conflict
- Onerous conditions from lender
- Aware buyer will not comply with the lender conditions
- Not standard T&Cs
Law Society guidance provides its permissible to act for lender and buyer when ? (4)
- Standard residential Mortgage Terms
- By a Institutional lender
- Using Law Society/UK finance approved certificate of title
- Reasonable & clients best interests
ALL ABOVE MUST BE MET
when acting for a buyer and lender which exceptions of COI is used?
Substantially common interest
Can u act for a buyer & lender in commercial transactions?
Yes but less common and lenders usually instruct their own solicitors
Can you act for part of the transactions?
Yes on the substantially common Interest but best avoided
Securing money on a property for business purposes can you act?
Yes but subject to Etridge guidance
Etridge Guidelines
- Decide if you can act
- Obtain full instructions with consent
- Separate advice & Apts
- Consent to write to lender confirming implications
What does the Etridge guidelines usually protect?
The lender
