For financially strapped housebuyers, the one-off costs associated with purchasing a home are often daunting.
Saving up for lawyers' fees, a separate survey if desired and other such costs - never mind the deposit - can be a significant barrier to people embarking on the house-buying process.
The proposal for home buyers and their mortgage lender to have separate solicitors instead of sharing the same one is therefore highly questionable, as it seems likely to mean buyers having to pay more. It would also put Scottish purchasers at a disadvantage compared to those south of the Border, since purchasers in England and Wales will continue to be able to share legal representation with lenders. Consequently, this change in Scotland raises the possibility that Scottish borrowers could be charged more than their English counterparts by the same mortgage lender in comparable transactions.
Piling added burdens on buyers, especially first-time buyers, and especially as the housing market begins to pick up, is only justifiable if there is a clear benefit. The argument in this case is that lenders are increasingly bringing insurance claims against solicitors in cases where there are problems with mortgages. The rationale behind having separate solicitors is to end a potential conflict of interest.
Yet how widespread is this problem? To what extent is it theoretical and to what extent real and pervasive? It would seem disproportionate to charge all home-buyers additional fees because of difficulties with previous transactions in a few instances. There might be other solutions that could be better targeted at the issue.
Mortgage lenders themselves are not in favour of this change and instead propose separate representation be required only where particular risk factors are identified in individual transactions or where the borrower and lender's choice of solicitor differs.
The Law Society argues that having separate solicitors would not necessarily lead to increased costs to customers, but that seems scarcely credible; indeed, the Council of Mortgage Lenders (CML) makes clear that it sees no reason why lenders should not pass on the additional costs to customers, either through higher costs or a higher rate of interest.
The change could also introduce delays to the process.
The CML warns that some lenders could stop lending in Scotland altogether if these proposed changes are approved. While that may or may not prove to be the case, a temporary withdrawal, while mortgage lenders prepare for the changes, is possible.
Some critics have voiced the suspicion that this proposal is really driven by solicitors seeking to maximise their business opportunities: with two solicitors instead of one being required on the buying side, it would certainly do that.
On the other hand, few would argue with the Law Society that every solicitor's client is entitled to independent advice focused on their best interests.
In choosing a way forward, it must be remembered that shared legal representation between borrower and lender has been uncontroversial for so long because the interests of the two clients are typically closely aligned. Any change to that system must be proportionate and carefully considered.
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