There is a strong consumer protection justification for making the whole conveyancing process a reserved legal activity, Professor Stephen Mayson has argued.
Issuing the Legal Services Institute’s final report on the case for reservation, Professor Mayson said the “guarantee” of title registration is incomplete, “with risks to the quality of the title and the enjoyment of the property potentially compromised by inadequate investigation or representation”.
He added: “There is also risk of fraud and practitioners absconding with purchase money or proceeds of sale.”
Currently only preparing the instrument of transfer or charge is a reserved activity.
The report – which is influencing the Legal Services Board’s work on rationalising the scope of regulation – was first published as an interim document in February, and said reservation (to authorised persons, rather than just lawyers) could be justified either to secure “the public good” and/or for reasons of consumer protection. He recommended adding conveyancing, immigration advice, preparing wills and powers of attorney, and estate administration to the list of reserved activities.
Originally Professor Mayson found a strong public interest argument for reserving conveyancing, but was not convinced of the consumer protection case because of the land registration process and guarantee. This has changed following submissions and further discussions, including a seminar held jointly by the institute and board.
The final report has also beefed up the recommendation on probate. Professor Mayson originally called for the current reservation – which relates solely to the preparation of papers for the grant of probate or letters of administration – to be scrapped and a new reservation added to cover the administration of an estate following a grant of probate or letters of administration.
He now thinks the current reservation should be retained and extended to cover the post-grant process. Professor Mayson was also fortified by the recent findings of the Legal Services Consumer Panel’s and its call for the work to be reserved.
The recommendation on administering oaths has been strengthened too. He calls for any authorised person who wants to administer oaths to have separate training and accreditation to do so, perhaps by way of an endorsement on their practising certificate.
A further addition to the report raises a question about the plans of the Institute of Chartered Accountants in England and Wales (ICAEW) to apply for its members to have probate rights.
Professor Mayson wrote: “If part of the rationale for reservation is the benefit of compensation fund arrangements that arise from being an authorised person, this might inhibit the authorisation of chartered accountants, for whom there are no such arrangements (even though the ICAEW is the largest licensing authority of insolvency practitioners, who also collect assets).”