Professional conduct in PP Flashcards
Professional conduct in property transactions - competent
Do you have the necessary skills and experience for what your client is asking
Professional conduct in property transactions - instructions from the client
Verify who your client is - be careful about accepting instructions from one spouse on behalf of another - require written confirmation from the other spouse that they are happy for you to take instructions from the first spouse
Professional conduct in property transactions - someone properly authorised to provide instructions on the clients behalf
When acting for a company, ensure that you are instructed by a validly appointed director (do a Companies House check) who has authority to instruct you (such as a board resolution)
Own interest conflict - two general circumstances that might give rise
A financial interest of yours or someone close to you; a personal or business relationship of yours
Conflict of interest - two exceptions
Substantially common interest; competing for the same objective
Conflict of interest - conditions to the two exceptions (three)
Informed consent, given or evidenced in writing; effective safeguards in place to protect clients’ confidential information; satisfied it is reasonable to act for all the clients
SCI - detail
Clear common purpose and a strong consensus on how it is to be achieved
CFSO - definition
Any situation in which two or more clients are competing for an objective which, if attained by one client, will make that objective unattainable to the other client or clients, and objective means an asset, contract or business opportunity which two or more clients are seeking to acquire or recover through a liquidation or by means of an auction or tender process or a bid or offer BUT NOT a public takeover
CFSO would not apply where…
two commercial clients are separately negotiating for the same property - the seller may elect to give them different terms of different parts of the same property
Example of where it would not be ‘reasonable to act for all clients’
Where one client is more vulnerable than the other
Why are you generally allowed to act for a buyer and lender in residential transactions
Both parties have a common interest - ensuring the property is good and marketable and that the value of the property is not jeopardised by any matters affecting the property
Why in commercial transactions is it not usual to act for the buyer and lender
Lenders and borrowers often have a different approach as to how they would resolve issues which arise during the transactions - also would not be able to negotiate the terms of the loan agreement or security documentation
Duty of disclosure - application in property transactions (content)
If acting for a buyer you must report to your client the full extent and results of your investigations and any limitations or matters which were not covered
Duty of disclosure - application in property transactions (format (CCS 8.6)
You must give clients information in a way they can understand - commercial clients may be used to reading reports on title whereas residential clients may not be
National Conveyancing Protocol / Law Society Conveyancing Protocol
The Law Society introduced the National Conveyancing Protocol in 1990 to help speed up the process of residential conveyancing.
There is no compulsion to use the Protocol, but solicitors for the seller and buyer should agree whether or not it will be used.
practice, the seller’s solicitor usually takes the decision and the buyer’s solicitor normally goes along with it. The Protocol has been made compulsory for solicitors’ practices that are part of the Conveyancing Quality Scheme.
