#3389 - Conduct Crib Sheet - Property Law and Practice

Conduct Questions

1. Acting for Buyer & Seller or landlord & tenant

   1. Principle 4 – Act in the best interest of the client

   2. Is there a conflict of interest?

      1. Outcome 3.5 cannot act if there is a client conflict or a significant risk of a client conflict

         1. Chapter 14 client conflict = any situation where you owe separate duties to act in the best interests of two or more client in relation to the same or related matters & those duties conflict, or there is a significant risk that those duties may conflict

      2. EXCEPT if outcomes 3.6 or 3.7 applies

         1. Outcome 3.6 – do buyer & seller have a substantially common interest?

            1. Chapter 14 a clear common person in relation to a matter or a particular aspect of it between the clients & a strong consensus on how it is to be achieved & the client conflict is peripheral to this common purpose

               1. IB 3.11 Outcome 3.6 does not apply in a situation with buyer & seller

               2. IB 3.4 Decline to act where clients cannot be represented even-handedly, or will be prejudiced by lack of separate representation

         2. Outcome 3.7 - are clients competing for the same objective?

            1. IB 3.14 Where there is a transfer of value clients will not be competing for the same objective

            2. IB 3.4 Decline to act where clients cannot be represented even-handedly, or will be prejudiced by lack of separate representation

            3. IB 3.6 only act where the clients are sophisticated users of legal services

   3. Outcome 3.3 consider factors such as whether there is a need to negotiate between the clients, where there is an imbalance in bargaining power between the clients or whether one of the clients is vulnerable

      1. IB 3.3 decline to act where you may need to negotiate on matters of substance on their behalf, such as negotiating on price between a buyer & seller of property

      2. IB 3.4 decline to act where there is unequal bargaining power between the clients, such as acting for a seller & buyer where builder is selling to a non-commercial client

   4. If do act then ensure that able to abide with rules of confidentiality & follow safeguards.

      1. Consider the impact of having to withdraw if circumstances change

2. Acting for Joint Buyers

   1. Permitted provided there is no conflict of interest or no conflict is likely to arise between parties

3. Acting for Joint Borrowers

   1. Provided no conflict of interest exists or likely to exit then can act

   2. Problems of undue influence can arise

      1. If special relationship (parent & child; solicitor & client; NOT husband & wife) there is a rebuttable presumption that there has been undue influence

         1. Husband & wife no presumption but lender put on enquiry as such transaction not to spouse’s advantage

            1. Bank take reasonable steps to come off notice, satisfying itself that practical implications of proposed transaction understood by spouse

         2. Royal Bank of Scotland & Eldridge

            1. Solicitor meet spouse face to face, without other spouse & explain purpose for which solicitor has become involved

            2. Explain that lender will rely on solicitor’s involvement to counter any suggestion that spouse has been unduly influenced

            3. Obtain confirmation from spouse that they wish solicitor to act for them in transaction

4. Acting for borrower & lender

   1. Outcome 3.5 Cannot act for both parties if there is a conflict of interests

      1. Chapter 14 client conflict = any situation where you owe separate duties to act in the best interests of two or more client in relation to the same or related matters & those duties conflict, or there is a significant risk that those duties may conflict

      2. Outcome 3.6 do the borrower & lender have a substantially common interest

         1. Chapter 14 a clear common person in relation to a matter or a particular aspect of it between the clients & a strong consensus on how it is to be achieved & the client conflict is peripheral to this common purpose

   2. Residential transactions

      1. IB 3.7 possible to act for a lender & borrower on the grant of a mortgage only where the mortgage is a ‘standard mortgage’ of property which is to be used as the borrower’s private residence

         1. Solicitor must be satisfied that it is reasonable & in the client’s best interests for him to act

         2. Certificate of title required by the lender should be in the form approved by the Law Society & Council of Mortgage Lenders

         3. Standard mortgage is one provided in the normal course of lender’s activities, where a significant part of the lender’s activities consists of lending & the mortgage is on standard terms

   3. Commercial transactions

      1. Outcome 3.3 & IB 3.3 must decline to act where a need to negotiate on matters of substance may arise

         1. Borrower & lender are likely to be separately represented from the outset because the mortgage documents are likely to be the subject of negotiation between the two parties so it will not be on ‘standard terms’ AND property is not being used as a private residence – IB 3.7 DOES NOT APPLY
            

5. Contract races

   1. Principle 2 – Act with integrity

   2. Principle 6 – Public trust

   3. Outcome 11.3 where seller’s solicitor is asked by the client to deal simultaneously with more than one prospective buyer he must inform all buyers immediately of the seller’s intention to deal with more than one buyer

      1. Seller’s instruction triggers an obligation to disclose

      2. If draft contract has been provided to prospective buyer, it can be withdrawn at any point before exchange & given to second offeror. As long as contract withdrawn from first offeror, there will not be a contract race

   4. Outcome 4.1 If seller refuses to allow solicitor to notify buyers of the contracts race, solicitor cannot disclose the information by breaching his duty of confidentially, however he must decline to act

      1. Outcome 4.3 Duty of confidentiality prevails over duty of disclosure

   5. Outcome 3.5 Must not accept instructions to act for both a seller & any of the buyers in a contract race as there will be a clear conflict between the clients

      1. IB 3.13 Acting for two or more potential buyers of the same property is likely to create a conflict of interest as the buyers will be completing for the same object

         1. Outcome 3.7 safeguards

            1. Explain issues & risks to clients & reasonable believe they understand them

            2. Clients confirm in writing they want you to act aware you are acting for others

            3. Must be no other client conflict in relation to the matter

            4. Be satisfied benefits to clients outweigh risks

            5. Check no risk to any Principles

            6. Keep a record of decision

         2. Duties of confidentiality & disclosure sill apply
            

6. Does solicitor have an interest in the transaction?

   1. Outcome 3.4 Must not act where there is an ‘own interest’ conflict or a significant risk of an ‘own interest’ conflict

      1. IB 3.8 acting in a personal capacity selling to or buying from, lending or borrowing from a client will be an own interest conflict unless client has obtained independent legal advice

      2. IB 3.9 advising a client to invest in a business, in which you have an interest which affects your ability to provide impartial advice will be an own interest conflict
         

7. Undertakings

   1. Principle 2 – Act with integrity

   2. Principle 4 – Public trust

   3. Principle 8 – Run business effectively

   4. Outcome 14 – defines undertaking

   5. Solicitor is under no obligation to give undertakings BUT

      1. Outcome 11.2 you must perform all undertakings given by you within an agreed timescale within reasonable amount of time

         1. APPLY TO FACTS – is there a timescale?

      2. IB 11.5 – maintain effective records when undertakings have been given & discharged

      3. IB 11.6 where an undertaking is given which is dependent upon the happening of a future event and it becomes apparent the future event will not occur, notify the recipient of this

      4. ‘on behalf of’ does not limit the liability of the law firm

   6. Failure to fulfil an undertaking is professional misconduct & solicitor that gave it will be personally liable

   7. Undertakings should not be accepted from unqualified persons because there is no method of enforcement
      

8. Acting where buyer or seller is not represented

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