Book reviews: February 2021

8th edition

Ann Stewart and Euan Sinclair

PUBLISHER: BLOOMSBURY PROFESSIONAL
ISBN: 978-1526509468
PRICE: £85.50 (E-BOOK £76.95)

Property lawyers of a certain age will remember when there were few textbooks on the subject of conveyancing. That changed with the publication of the first edition of Professor McDonald's Conveyancing Manual in 1982. Based on the lectures of the late Professor A J McDonald, the Conveyancing Manual was written primarily for students but soon became an essential part of any conveyancer's library. The Conveyancing Manual's seventh edition was published in 2003; an eighth edition, although originally planned, has never been produced. The publication of the eighth edition of Conveyancing Practice in Scotland makes it the most current textbook on the subject, and one which is very much aligned to the principle behind the Conveyancing Manual, namely that it is a textbook for practitioners and students alike.

The frequency of new editions of legal textbooks has increased in recent years. Gone are the days when legal education was based on an old edition of Gloag & Henderson, and Walker's Principles of Scots Law. There have been so many changes in conveyancing practice in the past 20 years that it is little wonder that new editions are required. Some new editions are no more than cosmetic makeovers of the previous edition, and one is often left with the feeling that it has been the publisher's decision to produce a new edition rather than it being the result of any major, substantive change in the law. That is not the case with this book. This edition updates the law and changes in conveyancing practice, but the authors are also to be congratulated for improving the layout and general flow of the text. 

Any good book starts with the contents, and this is no exception. From a review of the contents section, the reader gets an essential overview of the background to, and chronological order of, a conveyancing transaction, making it easy to find the text which is relevant to one's query.

When compared to the Conveyancing Manual, the table of cases is very much on the light side. In that text there is not only a lengthy table of cases but also a digest of same, providing brief details of each case listed. That, coupled with the extensive reading list, has been one of the core strengths of the Conveyancing Manual for a busy practitioner or student. The absence of a similar list of source material is disappointing, but does not detract from the overall nature of this book. Perhaps the authors might consider incorporating some of the material listed in the Conveyancing Manual in a ninth edition, if a new edition of the Conveyancing Manual is not produced. I am sure that the late Professor McDonald would have approved, given that the underlying approach of both books is the same.

As the authors state in the introduction, property law and its practice continues to change and it is good to see references to ongoing developments throughout the text. In chapter 2, for example, when considering the background framework to the practice of conveyancing, the authors comment briefly on e-registration and e-conveyancing. See paras 2.51-2.55. Note, in particular, the interesting assessment of the nature and effect of the important changes introduced by the Legal Writings (Counterparts and Delivery) (Scotland) Act 2015. The paragraphs were written before the demise of Altis (para 2.55), and the structural changes caused by the COVID-19 pandemic which saw the closure of the application record at Registers of Scotland and the introduction of digital submission as a matter of business necessity. Conveyancers adapted well to these changes which, while part of Registers' Digital Transformation Programme, were not planned to have been introduced for some time. The pace of change has increased dramatically, and there can be little doubt that there will be considerable changes to conveyancing and registration practice which will require to be covered in a further edition.

One of the standout chapters of the late Professor John Sinclair's original text was that dealing with the essential subject of examination of title – or “the stuff of conveyancing”, as the late author described it (now repeated in para 11.3). Chapter 11 is the longest chapter in the book (154 pages) – and rightly so. The text is clear and easy to follow and is to be commended. If I were to pick out one section of relevance to residential property lawyers, it would be that dealing with examining and reporting on deeds of conditions or deeds of real burdens. See paras 11.130 et seq. As the authors state in para 11.142, it is important that the contents be read and reported on properly to one's client. Sadly that is often not the case in practice.

Another feature of the book is the incorporation of styles at relevant places in the text. This is good, as it allows the reader to understand better the application of the legal principle being described. See, for example, the style dispositions which follow the treatment of special destinations in paras 12.5-12.7. The section on designing the parties to a disposition (paras 12.9 et seq) is also very useful, as is the treatment of VAT (paras 4.36, 8.7,12.29 and 15.66).

Chapter 18 is also a useful reminder that a job is never complete until all loose ends are dealt with. It may seem obvious, but the chapter serves to outline the various steps which must be undertaken in order to finish the job in hand. In this regard, a checklist is recommended.

Conveyancing is a process which, if done correctly, results in title to a property being transferred and registered. So much can go wrong, however, at various stages in a transaction. This book follows the flow of a transaction from start to finish, and is to be commended for its attention to detail while at the same time holding the reader's attention as a result of clarity of expression and its practical approach. This has been a feature since the first edition. When he received a request (from me in my capacity as national co-ordinator for the teaching of conveyancing in the Diploma in Legal Practice), some 25 years ago, to produce an outline of the Practice of Conveyancing Course at the University of Strathclyde, Professor Sinclair replied by sending me a copy of an earlier edition of this book. While it was not what I was looking for as we sought to standardise the teaching of conveyancing in the Diploma across Scotland, I enjoyed reading the text. Since then, the book has gone from strength to strength and I commend it to you. Professor Sinclair would have been proud.

Professor Stewart Brymer, Brymer Legal Ltd