A motion lodged in the Scottish Parliament this week by Jenny Marra, Labour MSP for North East Scotland, urges "that this Parliament is concerned at what it considers a lack of protection for house-buyers in securing titles to their property; notes the cases reported in The Herald of people in North East Scotland and the Lothians who have been left unable to sell their property because they never secured title to it in the original conveyance; understands that the only recourse in such cases is the Law Society's Master Policy, but believes there is a lack of transparency in the purpose, pay-outs and operation of the policy; is concerned that there appears to be no remedy in Scots law in such cases; considers that long-running cases in which the title has not been secured are unjust and can cause distress, financial burdens and ill-health, and notes the view that solicitors should have a legal obligation to secure title for their clients".
Last October, we reported how four West Lothian families are still without valid title to the new houses for which they paid up to £80,000 in 1999 and 2000. Attempts to sue their solicitors, and trigger redress through the Law Society of Scotland's Master Policy, which indemnifies all solicitors against negligence claims, failed when insurers Royal & SunAlliance resisted the actions.
In February we highlighted the saga of TV designer Sinclair Brebner who paid £135,000 for his Aberdeen flat in 2002 but has no valid title to the property. Mr Brebner has been told by a judge that his vendor's trustee in bankruptcy has a better claim than he has. In this case, solicitor liability and the protection of the Master Policy has never been tested despite years of legal activity.
In both cases, the buyers feel let down by a legal system which offers no redress against solicitors who fail to deliver a valid title, short of proving negligence.
Ross Mackay, the Law Society's conveyancing convener, said conveyancing is "a completely different landscape now" with client relations partners, complaint guidance, and the Scottish Legal Complaints Commission. He said: "The basic role of a solicitor in any transaction is to make sure the seller has a valid title. The master policy is there to provide cover for solicitors if they are negligent."
A Law Society of Scotland spokesman said: "We are not involved in the handling of specific insurance claims. Any person who is unhappy with how an insurance company is handling their claim can take their case to the Financial Ombudsman Service."
Royal and Sun Alliance, principal insurer to the Master Policy, declined to comment. The policy brokers, Marsh, are considering whether to make information available to The Herald.
Court papers suggest RSA is currently due a £100,000 legal bill from its Edinburgh lawyers Simpson & Marwick for activity on behalf of the West Lothian families. Yet this week one resident has written to RSA's new chief executive, the former RBS chief Stephen Hester, as follows: "Since last April we have heard nothing and, as we have been told to speak to no one about this case, we do not know where we stand. Please can you get involved and try and give four families a night's sleep and our title deeds, as we cannot move house if we wanted to."
Ms Marra is now seeking cross-party support for a Holyrood debate on the motion.