PLP Flashcards
A solicitor is instructed on the purchase of a parcel of land for development. The client is also interested in negotiating the purchase of a neighbouring parcel of land, and finds out that the same solicitor had acted for the owner of that land. The client asks the solicitor if the solicitor can provide a copy of the report on title prepared for the owner. The report on title is over 20 years old.
Can the solicitor comply with the client’s request to provide a copy of the report on title?
A. No, not in any circumstances because it is never possible to pass one client’s papers to another client.
B. No, because the solicitor owes a duty of confidentiality to the owner. However, if the owner consents, then the solicitor can comply.
C. Yes, because a solicitor’s duty to act in the best interests of their client override all other considerations.
D. Yes, because the report is over 20 years old and data protection rules didn’t exist then.
E. Yes, because the solicitor prepared the report on title, it is in the solicitor’s archives, and therefore it is the solicitor’s property
Answer: B
If they consent, then solicitor can give the report to clienz
It’s a bit too early to start thinking about confidentiality vs disclosure
On the facts it looks likely that we would get consent to disclose anyway
Also not about conflict of interests, it is JUST about confidentiality
The neighbour is a former client
A solicitor acts for an investor client buying a house. The solicitor also intends to act for the lender, a high street bank, in securing a loan over the house.
The mortgage offer has not yet been issued, but the client is anxious to exchange, and asks the solicitor to exchange immediately.
Which of the following statements best describes the solicitor’s position?
A. The solicitor cannot exchange without a mortgage offer because the solicitor knows that the buyer cannot complete the purchase.
B. The solicitor cannot exchange without a mortgage offer because the client cannot override the solicitor’s duty to act in the client’s best interests.
C. The solicitor can only exchange with the lender’s consent.
D. The solicitor can exchange, but should ensure that the client is clear on the consequences of being unable to complete.
E. The solicitor can exchange provided the solicitor made clear in their initial client care letter what exchange meant
Answer: D
Not C: solicitor is not acting for the lender yet
Not E: no
Not A: nothing in this scenario that says the buyer def can’t complete the purchase. Of course there’s a risk buyer won’t be able to complete the purchase, but there is no way of knowing this for sure
Not B: B says something true - it is true that the client cannotz override the solicitor’s duty to act in the client’s best interests. BUT the premise of B is that it will DEF be in the client’s best interest not to exchange. But there is notihng on the facts to suggest this.
D: yes you can exchange, so long as you are very clear to the client what the risks of exchange are
So long as client understands risks and consequences, you can exchange
Acting in client’s best interests does not mean deciding commercially what you would do
A man comes into the office to instruct the solicitor on the sale of a house owned by him and his partner. The solicitor asks if the partner can come into the office as well, and the man explains that the partner works long shifts at the local hospital and therefore will not have an opportunity to attend the office or speak to the solicitor. He declines to give out the partner’s work telephone number.
What should the solicitor do?
A. The solicitor should decline instructions as a conflict of interest has arisen.
B. The solicitor should proceed with the conveyancing as a couple buying a house together will have a substantially common interest, and one partner can speak for both.
C. The solicitor should not proceed until the man allows the solicitor to speak to his partner to confirm instructions.
D. The solicitor may proceed if the partner sends an email to confirm instructions.
E. The solicitor should call the hospital switchboard and ask to speak to the partner directly.
Answer: C
Not A or B: where you’re acting for a couple, this is exactly the type of situation where you have a conflict interest.
A is wrong bc it would be absurd to not be able to work for a couple
B: what is wrong is that one of them can act on behalf of the other just bc they are a couple
C, D, E: all about how we’re going to get authorisation to work on their behalf
Not E: don’t go against client instructions to force contact
Neither C or D is perfect. But you have to find single best answer
C is better than D. Why?
D: email could be fake. We’re not sure we’re talking to the right person. You’re not sure you’re getting authority from the person you’re meant to get authority from
There is a difference between getting authority AND having the written evidence that you have this authority
So it’s not really about email being written confirmation here
C: is best answer - best you meet them in person as well
Authority is ongoing duty: you have to keep wondering if you’re acting for the best interests of this person
A client has entered into a contract to sell her house. After the exchange of contracts, the client seeks your advice about whether she may keep the light fitting in the sitting room. This is held to the ceiling by three small screws and was made by the client’s late father. The light fitting is not mentioned in the contract.
May the client remove the light fitting before completion?
A. No, because the light fitting is likely to be a fixture due to the high degree of attachment.
B. No, because the removal would constitute a breach of an implied term of the contract as the room would be unlit when the new owners moved in.
C. No, because any item within a property is permanently part of the land and must not be removed.
D. Yes, because the light fitting is likely to be a chattel due to the slight degree of attachment.
E. Yes, because any item with sentimental value is always removable.
Answer: D
3 small screws: not a high degree of attachment
You act for a client buying a house at a price of £200,000 with the help of an 80% mortgage. Searches and enquiries have been carried out, and you have agreed with the seller’s solicitor to aim for exchange by no later than the end of next week.
You receive a call from the seller’s solicitor to say that the seller has had an offer from a third party of £210,000 and that your client will need to match it, or the seller will sell to the third party.
Your client tells you that they were already overstretching themselves, and it will be impossible to do this.
How do you advise your client?
a. You should ask to see proof of the third party’s offer, as a seller may only withdraw from an existing sale if a genuine offer has been received.
b. Your client can see if they can persuade the seller to honour the original price, but if the seller refuses, then your client will unfortunately lose the property.
c. You advise your client that as you are holding the contract, you can exercise a lien over it and refuse to return it to the seller’s solicitor until they honour the original price agreed.
d. You should see whether your client wishes for you to refer it to a litigation colleague to issue proceedings to force the sale to proceed.
e. Your client should be prepared to lose the property, but at least they can recover the costs of their searches and survey from the seller.
b. Your client can see if they can persuade the seller to honour the original price, but if the seller refuses, then your client will unfortunately lose the property.
Until exchange of contracts, either party can walk away from the deal without incurring any liability. The seller can choose to sell to another party who is offering a higher price without any liability - this is know as ‘gazumping’ in practice. There is no obligation on the seller to prove another genuine offer has been received and the buyer would not be able to recover the costs of their searches and survey from the seller.
A buyer is buying a house that is next door to a large chemical works. By chance, on the day that the buyer views the house the chemical works is shut for maintenance.
However, after completion of the purchase, the buyer finds that the chemical works emits unpleasant fumes. A neighbour confirmed that this happens regularly but assures the buyer that ‘you get used to it’. If the buyer had known about the fumes the buyer would not have exchanged and completed.
The buyer feels that the seller, who made no representation about the chemical works either directly or through their solicitors, should have raised the issue.
What action has the buyer got against the seller?
a. The buyer can make a claim for damages to reflect the loss of amenity but cannot rescind the contract.
b. The buyer cannot make a claim against the seller because it is a subjective matter and as the neighbour says, ‘you get used to it’.
c. None. Under caveat emptor, it was for the buyer to find out about the property anything material to the buyer’s purchase.
d. None, because the actions of a neighbouring property are irrelevant to a buyer’s investigations.
e. The buyer can rescind the contract as the seller has not disclosed material adverse information.
c. None. Under caveat emptor, it was for the buyer to find out about the property anything material to the buyer’s purchase.
With limited exceptions (which you do not need to know for SQE purposes), the seller is under no positive obligation to disclose adverse information about the property.
You act for a buyer who is buying a house with a loan to be secured by a mortgage. You also act for the mortgage lender.
One of the conditions of the mortgage is that the buyer will meet the balance of the purchase price from their own funds, and not further borrowing.
You are due to exchange tomorrow, or the seller has indicated that they may withdraw from the transaction. The deposit has arrived today. Your accounts department tell you that the payment has been made from a company who only deal in personal loans.
How should you proceed?
a. You should advise your client that the loan company should have made the payment to your client, and then from their account to you, so that it would appear as a cash advance.
b. You should advise your client that you will need to disclose this to your lender client, and if your client does not give their consent to you doing this, you will need to cease acting for both buyer and lender.
c. You should notify your lender client, and let your client know when you have their response.
d. Given the urgency of the transaction, you should exchange, but raise this issue with the client before completion.
e. Under the Conveyancing Protocol, you should advise the seller’s solicitor of the issue so that they understand the cause of the delay.
b. You should advise your client that you will need to disclose this to your lender client, and if your client does not give their consent to you doing this, you will need to cease acting for both buyer and lender.
In residential transactions it is common for the buyer’s solicitor to act for the lender because there is unlikely to be a conflict of interest between these parties.
On the facts, you have a duty to disclose (CCS 6.4) all information material to the matter which you have knowledge, which includes the fact the balance of the purchase price is being met by a company who deal in personal loans, not the buyer ie in breach of one of the conditions of the mortgage.
The duty of confidentiality (CCS 6.3) that you owe your buyer client will override the duty, which means you cannot disclose this information without the permission of the buyer.
If the buyer does not give consent, you will have to cease to act for the lender. You would be advised to stop acting for the buyer as well.
A solicitor is acting for a buyer of a registered freehold title in England. Part of the purchase price is to be funded by a mortgage loan.
Which of the following options describes what the buyer’s solicitor will do after completion of the purchase?
a. Nothing. Completion marks the end of the transaction.
b. Pay Stamp Duty Land Tax and register the buyer as owner of the property, and the lender as a chargee, at the Land Registry.
c. Pay off the outstanding balance of the seller’s mortgage.
d. Exchange contracts.
e. Report on title to the buyer.
b. Pay Stamp Duty Land Tax and register the buyer as owner of the property, and the lender as a chargee, at the Land Registry.
