Property Fraud: two recent cases Tim Prior LLB IRM Fellow Solicitor (non-practising) Director, PNCR Legal
Thumbnail Sketches Factors Purrunsing v A Court & Co, HOC Ltd P&P Property v OWC Date Sept/Oct 2012 Dec 2013 Claimant Buyer Buyer Value 470,000 1,030,000 Empty Yes Yes Mortgage No No Seller Home in UK but working abroad Living and working abroad CDD Shortcomings Shortcomings s.61 TA relief? No, did not act reasonably No (obiter) Seller s firm Liable: breach of trust 50% Not liable Buyer s firm Liable: breach of ctt, tort + trust 50% Not sued Agent Not sued Not liable www.pncr.co.uk
www.pncr.co.uk Similar Facts, Different Result Purrunsing v A Court & Co, HOC P&P Property v OWC Breach of trust conceded by both firms. Focus on AML, CDD and s61 Trustee Act 1925. The firms relied on the Law Society s 1998 Code for Completion by Post even though the 2011 was available. Code not mentioned in the judgment. Focus on Breach of Warranty of Authority and Breach of Trust. Neither firm would have understood the seller s solicitor to be saying that she had authority from the true owner. The firms used the 2011 version of the Code. The revised wording was crucial in assessing breach of trust. u Both are first instance decisions, but P&P Property has leave to appeal to the Court of Appeal. How realistic? u When you have several innocent parties, the one(s) with insurance usually carry the can - but not in P&P.
Warning signs Purrunsing P&P Property Empty property Yes Yes Mortgage free Yes Yes High value Yes Yes Speed/pattern of transaction Yes Yes OCE alternative address ignored Docs linking seller to the property? Yes No Yes Yes but flawed Information inconsistency Yes (Building work) Yes (CDD) Seller abroad Working abroad Living and working abroad Acquisition of property 2008 Deed of Gift? Indemnity policy? Who acted? Have you verified seller s ID? HOC asked questions by phone and email but didn t advise buyer of unsatisfactory replies. Aged 23 Who acted? The buyer s solicitor assumed that OWC would have made all reasonable CDD checks www.pncr.co.uk
www.pncr.co.uk CDD Verification Passport Photo Signature DOB If certified, by whom? Utility bills For relevant property? Size of bill for an empty property? Bank statements Electronic search Look beyond the address. Do the payments make sense? If referred or fail, insist on a second pair of eyes. The Law Society s Property and Registration Fraud Practice Note, para 3.1.1: summarises the obligations in Reg.5(c) MLR before saying that it " means more than just finding out that they want to sell a property. It also encompasses looking at all the information in the retainer and assessing whether it is consistent with a lawful transaction. This may include considering whether the client is actually the owner of the property they want to sell".
www.pncr.co.uk Concluding Thoughts Target properties: 600,000 empty properties in England and Wales and 4-5 million buy to let properties. The Land Registry s property alert service had signed up 25,000 owners earlier this year. A matter handler s default risk setting tends to be low. Set objective standards and track all high risk conveyancing matters. CDD procedures should not be purely mechanical. Avoid assumptions. You are only obliged to undertake investigations expressly or impliedly requested by your clients. But as soon as you acquire information that may be important to them, this must be brought to their attention. Consider warning signs as a whole, not individually. Record them in one place so that they are obvious to anyone handling the file.
Thank you Tim Prior LLB, Director, PNCR Legal Non-practising solicitor, IRM Fellow E: timprior@pncr.co.uk T: 0844 357 4096 www.pncr.co.uk