Presentación de resultados de la encuesta…

Friday morning, 23 February. There is a bundle on Timothy’s desk when he arrives at work. The deeds of Fell View from the Ledchester & Bongley Building Society (the Goldberg Sale). In spite of some years (we diplomatically omit to mention how many) struggling with a law degree followed by the Legal Practice Course, this is the first time that Timothy has seen a real deed of conveyance. He is disappointed. Expecting something like a medieval, illuminated manuscript on finest parchment heavy with wax seal, he finds documents typed on ordinary (though of rather better quality than Basildon Bond) paper and the seals no more than red circles of paper stuck on (one of which becomes detached and floats gently to earth as he looks at the document).

The magic and awe of conveyancing immediately dissolves in Timothy’s mind; buying and selling land is really no different from buying and selling shares (about which his father has taught him much); so he begins to think. Confidence (‘Over-confidence!’ Old Jarndyce is heard to mutter) in himself as a fine conveyancing lawyer is boosted. There is nothing to it.

Timothy takes the bundle of documents and methodically starts to put them all in chronological order. The first one to come to hand is a conveyance on sale dated 24 June 1974. ‘Ah!’ says Timothy, intoning old lecture notes from memory, ‘Under an open contract, a good root of title is a document which is at least 15 years old, deals on the face of it with the whole legal and equitable interest in the property, contains an adequate description of the property and contains nothing to cast doubt on the title. A conveyance on sale or a mortgage is likely to provide a good root.’ (It has to be said that Timothy has got this right.) He is happy; this is a conveyance on sale. It is over 22 years old. He puts the documents back in a bundle with a note for the secretary to photocopy the 1974 conveyance and all the later ones and do an epitome (para 10.6.1). ‘Now to draft the contract,’ he thinks.

Timothy takes out the Goldberg file. There is a copy of the letter and undertaking sent to the manager of the local branch of the Ledchester & Bongley in the following terms (see Guide, Form 2, p455).

In addition, Timothy finds on the file a note signed by both the Goldbergs giving their irrevocable authority to Jarndyce & Jarndyce to pay the proceeds of sale on completion to the building society.

Question Explain how this undertaking satisfies (assuming that it does!) the essential requirements of a solicitor’s professional undertaking (para 5.13). Note that the specific authority of the clients is not really needed in this situation; any more than it is to discharge any mortgage out of the proceeds of sale. The building society holds the title deeds in its own right as mortgagee. The deeds can only be obtained and the property sold free of the mortgage in accordance with the client’s instructions if the money is paid over to the society. It would be different if there were a surplus of proceeds after total discharge of the mortgage. It is different where an undertaking to pay over the proceeds is given, for example, to a bank to secure a bridging loan. The bank, not being a mortgagee of the property, has no right to the property or the proceeds of its sale without the clear authority of the vendor.

Nevertheless, it is always important that the client does clearly understand and authorise what is being done on her behalf.

The letter from the Ledchester & Bongley accompanying the title deeds confirms their willingness to release the part being sold on the above terms.

There is also a plan of the property showing the portion to be sold off (Document 5.1.3).

There is also on the file a completed form of Instructions on Sale completed by Mr Perky before his flight to love. Where this form indicates that it is a sale of part, Mr Perky has noted: ‘See attached sheet for details of easements and covenants, etc.’ This sheet appears to have become detached. Timothy rummages for it in the file without success. However, his new found confidence in his conveyancing skills tells him ‘Not to worry. It won’t make any difference. The Standard Conditions already cover sales of parts.’ (A noise off suggests that Old Jarndyce may at this point be worrying.)

The Instructions on Sale are as follows:

and based on the plan from the 1970 conveyance (Document 5.2(a)) is as follows:

Timothy has decided that the golden rule in any conveyancing transaction is to ‘Find an appropriate blank form and fill it in. ‘A few words with the secretary reassures him that all he has to do is to ‘Fill in the blank contract form. I’ll print it out.’

He soon finds a blank contract form in a drawer. It is entitled ‘AGREEMENT (incorporating the Standard Conditions of Sale (First Edition)’. He is innocent of the fact (and the secretary assumes him to be much too wise to be told) that the first edition has been replaced by a second edition and a third edition which make substantial and significant changes to the first edition of the Standard Conditions.

Luck is with him. The form has been scribbled on (no doubt by one of Miss Pinky’s offspring). Delving into the drawer, he finds another copy which happens to be the third edition.

Wasting little time (and less thought) and using the information from the file and what he remembers from the deeds (now with the secretary and too much trouble to fetch), he has soon completed the front page of the form as follows:

5.1.7 Timothy can think of nothing to add and is about to leave it as it is. The words ‘indemnity covenant’ do suddenly float into his mind. ‘You always need an indemnity covenant,’ he thinks. So he adds a special condition 5: ‘The Purchaser will in the conveyance enter into the usual indemnity covenant.’ ‘Usual’ is a word frequently resorted to by Timothy, whether in a pub or a contract, when he is not quite sure what he is asking for.

Timothy fails to express any choice between the alternative versions of special printed condition 5.

Question Is Timothy’s identification of the 1974 conveyance accurate? (See below, Documents 5.2(a) and (b).)

Having drafted his first contract and feeling highly satisfied with himself Timothy leaves the room to give it to the secretary and goes to get himself a cup of coffee.

Old Jarndyce, who is never far away, steps, as it were, front stage.