Law Society's response to homebuying report under fire

He had found significant defects in the law after The Herald revealed how four families on the Happy Valley Road estate in Blackburn, West Lothian, which was built in 2000, are still awaiting their title deeds. In a second case, a man faces losing the flat he thought he had legally purchased 12 years ago in Aberdeen.

The sheriff urged the profession to 'clarify' the duty of solictors acting for buyers in transactions, suggested reforms to the society's Guarantee Fund , and criticised the current operation of bankruptcy law in relation to property.

But he said the cases did not suggest a systemic problem in conveyancing.

However, Mr Dailly said: "I simply cannot see that our system of conveyancing and property sales is fit for purpose if you have a situation where a homeowner buys a property and ends up not owning the title to it and doesn't have any effective redress.

"It boils down to what is the point of having to pay money to get a solicitor or licensed conveyancer in order to purchase a property?

The response from the president of the Law Society makes no sense, it's just plainly not good enough."

Law Society president Alistair Morris, welcoming the sheriff's report last week, said that overall the findings were "reassuring" and showed there was "no fundamental or underlying problems with Scots property law and solicitors' conveyancing practice".

He said the two cases investigated for the report were "highly complex and unusual".

Mr Dailly said: "Consumers in Scotland have to have a system where they have confidence in it. At the moment although in most transactions it doesn't happen, the fact of the matter is it can happen, and it isn't acceptable from a consumer protection point of view for people in Scotland to end up in Dante's seventh circle of hell. It throws our whole system into potential disrepute."

He added: "It's now a matter for the Scottish Parliament to provide a solution which means this can't happen."

John Morrison, brother-in-law of Sinclair Brebner, who faces handing over his £350,000 Aberdeen flat to the estate of the now bankrupt businessman who sold it to him 12 years ago, said: "When a contract has been completed between a property seller and the corresponding buyer, it should not be possible for a third party to intervene and effectively destroy that contract, take the property for a bankrupt's creditors, as well as allowing the trustee to keep the (sale) price paid, to the further benefit of the creditors."

He said the Bankruptcy Act had to be changed to prevent it from "simply transferring the problems created by the bankrupt onto an innocent party".

However Mr Morrison welcomed the sheriff's call for the Guarantee Fund to be overhauled to allow it to pay out more readily.

"It should be aligned with the English Law equivalent so that anyone in a position such as Sinclair's can be found a swift and satisfactory remedy, rather than possibly facing a decade of litigation that would ruin all but the most tenacious."

Ian Reid, one of four Happy Valley householders still waiting for title deeds after 14 years, said the Law Society's Master Policy insurers RSA had in 2002 paid out £85,000 to the developer who owned the wrongly-sited drains and sewage outlet for 17 houses on the estate, rather than dispute solicitor negligence. Yet RSA had in 2006 refused to accept negligence in the case of the four wrongly-sited houses. Mr Reid said: "That left us high and dry, and amounts to discrimination against the four houses."

RSA said it could not comment because of the "sensitivity of the issues".

Last year, the then Law Society president Bruce Beveridge said: "Whilst the vast majority of Scottish solicitors provide an excellent service for their clients, we also need a robust set of consumer protections to help clients in those very few occasions when things go wrong."