Conveyancing issues - am I over-reacting

Rachel_Pierson

I've been remortgaging recently. All went well, until the conveyancing. This was done by a company called "Enact", and outsourced to a fourth party called "Your Conveyancer" as I live in Scotland. Only after we'd done the survey, got the written mortgage offer, and completed everything else involved did this company send their Terms and Conditions. It contained this (to me concerning) clause:

"We shall incur no liability to you for any loss or damage suffered by you arising from fraud, misrepresentation or withholding of information or inaccuracy of or omission from information, whether on your part or that of other sources of information relied on by us."

So, if I'm reading that correctly, if a fraudster should call the conveyancer and pretend to be the borrower. And tell them to change the bank account details the money should be forwarded to, to the fraudsters bank account, the borrower would become liable for this. Even though it would have been caused wholly by a third party fraudster and the conveyancer's lack of professionalism / due dilligence. I thought that's what Professional Indemnity Insurance was meant to be for?

Friday Afternoon Fraud like the above is becoming more prevalent. (150 cases last year, and ten times that many attempted frauds.) So I can see why the conveyancer would want to outsource responsibility for their actions. I just can't understand why they think borrowers will stand for it. Also, to be frank, they've been taking risks like trying to send passwords via email (they asked for my address multiple times to do so, but I insisted these be sent by post. Only when I received them by post did I become aware of the above term.)

The bank (First Direct) doesn't want to know. And the conveyancer won't change their terms. So I've put the whole thing on hold, and am reviewing my options with other lenders (of which there are many with similar deals.)

My question is, am I being unreasonable here? Or is this a legitimate concern the bank should care more about as a responsible lender?

AnotherJoe

I think you are being entirely reasonable.

IANAL and I'd have thought that the unfair contract terms act or whatever its called would disallow that clause if it ever went to court, but you dont want to be there relying on that.

So I agree yes they should have insurance to cover this sort of thing and not rely on dumping their ineptitude in your lap as a solution.

Rachel_Pierson

AnotherJoe wrote: »

I think you are being entirely reasonable.

IANAL and I'd have thought that the unfair contract terms act or whatever its called would disallow that clause if it ever went to court, but you dont want to be there relying on that.

So I agree yes they should have insurance to cover this sort of thing and not rely on dumping their ineptitude in your lap as a solution.

I think you're right about that. Though I could see it being used as a delaying tactic if the worst happened. There's stories all over the internet about borrowers having funds stolen, and sorting out recovering money via insurance has been a dystopian nightmare for the victims. Even without such a contractual term to muddy the waters.

The annoying thing is this conveyancer does have PII cover. (It's a requirement to be on the Law Society of Scotland's conveyancer list that you use their Master Policy for Professional Indemnity.) So I'm not sure why they're resorting to a clause like that, which as you say would be unlikely to hold up under fairness principles.