We will regularly review and update these FAQs as new queries come in. Practices are reminded to liaise with their RSM as and when any new issues arise.
FAQs on the Regulatory Fee deferral scheme can be seen here.
You should familiarise yourself, and point your clients to:
The Legal Sector Affinity Group (LSAG) has issued advice for legal practices on preventing money laundering and terrorist financing during the COVID-19 pandemic.
- What should I do before exchange?
Consider carefully any additional concerns raised by your clients and seek to ensure they have the support they need.
(i) Well ahead of the exchange of contracts do make sure that your client is aware of the likely consequences if completion is delayed and how these might be avoided or mitigated.
(ii) Explain in your Report on Title (as you should do already) the consequences of either party failing to complete (as set out in the Standard Conditions of Sale).
(iii) Update the Report to take account of the specific risks associated with COVID-19, as discussed with your client.
(iv) refer your client to the Government advice on moving home, in particular:
(a) support clients who are due to complete on occupied properties in the stay-at-home period to change the moving date.
(b) If moving is unavoidable for contractual reasons and the parties are unable to reach an agreement to delay, follow advice on staying away from others to minimise the spread of the virus
(c) advise clients that are ready to move not to exchange contracts on an occupied property, unless they have made explicit provision for the risks presented by the virus.
(v) Refer to the guidance from conveyancing industry stakeholders for clients that are yet to exchange contracts.
- What if a client wants to insert a Coronavirus clause into the contract before exchange?
Given the wide range of possible situations, the CLC is not in a position to provide or suggest any standard Coronavirus clause.
If the client gives instructions to go ahead with selling or buying an unoccupied property in the stay-at-home period (see Government advice on moving home):
(i) Provided it is in the interests of the client do continue to work within the Standard Conditions of Sale.
(ii) Be cautious about using a Coronavirus clause as standard.
(iii) Proposing a Coronavirus clause may result in delay while its terms are agreed, increasing the risk that one or more parties may not be able to proceed with the transaction.
(iv) Discuss with the client whether simultaneous exchange and completion or a shorter period between exchange and completion is more likely to meet their needs.
(v) Make your own assessment about whether additional provisions are required or desirable on a case by case basis.
(vii) Refer to the guidance from conveyancing industry stakeholders for clients that are yet to exchange contracts.
(viii) Ensure that any instruction you obtain from your client is recorded in writing.
- What if completion can’t take place after exchange because of COVID-19?
Consistent with the Government advice on moving home, make every effort to support clients who are due to complete on occupied properties in the stay-at-home period to change this date.
If this is not possible, advise the client of the terms of the National Conditions of Sale, particularly the terms setting out the entitlements of the party which is not in default. That party may take a ‘good-faith’ view. If the transaction is part of a chain it may not be possible to take a good faith view without attracting a penalty.
Refer to the guidance from conveyancing industry stakeholders on a suggested process for deferring the completion date and a draft variation agreement.
- How can we check clients’ ID without meeting face to face?
The AML requirements have not been relaxed: it is up to you to determine what is necessary to identify your client, and you need to ensure you are complying with the Client Due Diligence (CDD) measures in the Money Laundering Regulations (MLRs). The measures you put in place to identify a client will depend on your assessment of risk in the circumstances. You must update your policies and procedures in line with any changes you make.
To assist in identifying and verifying clients you may wish to use a video calling app (Skype, Facetime, Zoom etc.). Request that the client sends you a clear photograph of their ID, then schedule a video call with the client and ask them to hold the ID document up in the same frame as their face. In this way you can check the original document against the image sent to you. You may wish to have the client present the original documents to you at the first practical opportunity.
Then, use an electronic ID checking service to verify the information. Electronic ID checking tools are available that allow clients to provide their ID without attending your offices or leaving their homes. We recommend you explore these options as they could help keep transactions moving in the current challenging circumstances. You may wish to refer to the FATF Guidance on Digital ID.
If you decide to change your process for ID and verification, make sure that the service provider uses multiple sources of data in the verification process. Make sure that you can support any changes with a risk assessment and an explanation of mitigations you have put in place. Remember that the MLRs list not meeting a client face to face as a risk factor, requiring Enhanced Due Diligence (EDD).
Your policy for verifying the customer’s identity should be carried out in line with the risk assessment carried out under regulation 18(1) (see regulation 28 MLR 2017).
- Do I need to take special precautions when handling mail?
No. The Government’s Guidance for employers and businesses on coronavirus does not recommend any additional precautions for handling post or packages.
- What should I do if I think that I have been targeted by a scam?
A number of scams related to the coronavirus have been reported. If you suspect your business has been the victim of a fraudster contact your bank immediately and then report it to Action Fraud online or on 0300 123 2040.
You are reminded to advise your staff of precautions they should be taking and also reiterate to clients what process you will follow if you have to change bank account details.
- What if the other party fails to complete on the contractual completion date?
Assuming that the National Conditions of Sale apply, you should obtain instructions from your client whether to serve a Notice to Complete (paragraph 6.8). This puts the defaulting party on notice that at the end of the notice period, the other party may rescind the contract (see further paragraphs 7.4 and 7.5).
- How can clients get TR1 and Mortgage Deed forms witnessed?
The client should consider whether they are able to have the documents witnessed while still adhering to social distancing rules and guidelines. Be aware that the legal witnessing requirements may change depending on the particular document.
- If our client has a mortgage offer, are there any additional matters we need to report to the lender?
Your obligations in this regard remain the same: you should check and comply with the instructions from the lender.
Last amended 24 April 2020
