"We've aye done it this way" – not now!
I have no axe to grind for the Registers, or the Law Society of Scotland. I was involved in the ARTL development and continue to take an interest because I genuinely believe that it will be of tremendous benefit once the profession has embraced it and Registers have sorted out the teething problems.
ARTL deals with the systematic process of the conveyancing transaction which is often undertaken in law firms by unqualified staff under supervision. The system will currently deal only with the most straightforward cases – a transfer of title by the registered proprietor for a monetary consideration. At some point in the future it should be possible to use it for other transactions.
It has been reported that Lloyds Banking Group is undertaking a cull of panel solicitors in England & Wales, removing firms that do not carry out an unspecified minimum volume of work. There is nothing the Law Society there can do to prevent this. The problem Lloyds are trying to remedy throughout the UK is delay in securing a valid charge, leading to losses through ineffective charges. I understand that Lloyds recognise that if ARTL is used, there is effectively no such delay and accordingly in Scotland they will not remove panel solicitors if ARTL is used, or initially the firm has applied to be enabled for ARTL. There is no ARTL equivalent in England or Wales.
To that extent, LSS and RoS must be congratulated for being ahead of the game in enabling the Scottish profession to avoid such a cull. Is it preferable to be bullied off the panel, or bullied into adopting a straightforward and effective process that has been available for more than three years but which the profession (with a few exceptions) has not been far-sighted enough to adopt? Bullying by lending institutions is nothing new: the profession has allowed itself to be pushed into accepting last minute loan instructions, one factor leading to late conclusion of missives.
When ARTL was conceived, it was thought (naively) that the profession would welcome such a development and adopt it voluntarily. What was evident, however, was that when lenders saw the benefits, they would do exactly what Lloyds have done. I predict that it's only a matter of time before others follow suit.
Unless the profession gets its act together and adapts the conveyancing process to work smoothly and efficiently, it may find itself bypassed in this core area of business, and another traditional part of the practitioner's income stream will disappear.
Once you become familiar with it, ARTL works and is an easy system. If you are not IT literate, someone in your firm can sit beside you at the few steps where you need to be involved, until the deed is signed, the transaction approved and the application submitted, resulting in a truly concluded transaction (registered title and security, fee, registration dues and SDLT paid, and file actually closed) within a couple of days of settlement.
Yes, there are problems with ARTL, and some of Ian Rodger’s points (Journal, September, 10) are well made. But the system will only improve if the profession uses it and reports the problems to the Keeper to put pressure on her to sort them. Mr Rodger’s specific points on speed and usefulness of the messages are the sort of thing that should be fed to John Scott at the Society to collate and refer through the appropriate channels.
The truth, however, is that the current problems do not prevent its effective use for straightforward transactions. And you are told at the outset if a transaction is not one the system can take.
Some of Mr Rodger's issues relate to what appears to be the policy of many lenders, which apply equally on paper. Lenders will not release the paper discharge until they have the redemption funds – and that could be four weeks as well. Don’t blame ARTL for difficulties caused by others.
There needs to be a mandate, not because of ARTL or the Society, but because of the legal consequences of the best evidence rule. Isn't the law a nuisance when it gets in the way? The mandate is to protect you from claims by clients that they did not authorise you to sign the security, and to provide you with the best evidence of that authority if such a problem arises. We don't have mandates for missives because the consequences of missives (purchase or sale of the property) are realised within a short time. The security might remain over the property for 20 years, and so long as you have the mandate, you and your successors have its protection against false claims.
Yes, there are new tricks to learn in adopting ARTL, but that's progress. ARTL keeps the solicitors' profession at the very heart of the conveyancing process, and so long as the process is only open to solicitors that will remain the case.
In this issue
- The Scottish Government's EU and International Law Branch
- Akzo-Nobel: what you need to know
- The Edinburgh Declaration
- The curtailment of criminal appeals to London
- Society, justice and the greater good
- "We've aye done it this way" – not now!
- A deal to buy in to
- Land Register: what next?
- Designed to appeal
- Perpetrator or victim?
- An orchestra of instruments
- Two by two, by two
- Added capacity
- D-Day for legal aid
- Law reform update
- Compliance and the consent regime
- From the Brussels office
- Paper, pixel and process
- Ask Ash
- Draft proof
- Time for a fresh look
- Where to draw the line
- Reviewing the review law
- Expensive business
- Taking the full impact
- No discrimination?
- Scottish Solicitors' Discipline Tribunal
- Website review
- Book reviews
- It's not good to talk
- Getting to know you