The limits of conveyancers' duties as legal advisers

I was recently challenged by an estate agent, keen to ensure the safety of their commission. They said that I seemed to be looking for problems.

I took that as a compliment (even though I am fairly sure it wasn't meant as one!). What I pointed out in response was that I could not find solutions to problems unless I had identified what those problems might be in the first place. Spotting the difficulties is usually the easy part, knowing what to do about them is altogether more taxing. The same problem may have many different solutions, each of them valid in their own right but with differing consequences.

Transactions are sometimes less robust than we think. Although the buyer wants to buy and the seller wants to sell they will have a tipping point. That point will be, and may remain, unseen and unidentified. Indeed it is probably nowhere near where even the client thinks it is. How often have you heard the selling client saying that they refuse to drop the price another penny, only to sleep on it and realise that pragmatism is the best course. Every client will have a history, which in turn will affect their willingness to look at problems in a particular manner. Some will be risk averse, others verging on ?the reckless.

Choosing your battles

It is important to realise that there is no right or wrong answer and not tell the client what to do but rather to advise them. I often find that advice is not as they would wish. The client wants you to be their advocate, to be on their side. If that means being derogatory or bullish on their behalf about the person on the other side of their transaction that is seen as part of our role. However, frequently that is the opposite of what the client needs.

Being a trusted adviser, someone to put the problem from the other person's point of view, is a valuable tool in our armoury. Many times a client has called me, having thought about the outrageous behaviour of their opposite number overnight or over the weekend. They have been in a frenzy demanding that they are made to behave and act decently. That is, until I point out that if my own client was in their shoes they might well act in the same way and even if they wouldn't, do they really want to make this the line in the sand? The punch line is of course what do you really want to achieve? The answer is that they want to buy or sell. This is already an expensive business so the costs of withdrawing will simply add to the heartache. In a month or six, or certainly a year or two the stress of the moment will have been forgotten. It may become a good 'my move was worse than yours' dinner party story but make the story a positive one '“ about how a solution was found.

Standing up for ones principles is the right and proper thing to do but if the enemy you have beaten is the person whose money you want or whose house you crave, the victory will feel very hollow. Indeed the client will almost certainly regret the decision at a later point. Some while ago I was acting for a selling client who refused to accept a lower offer made by their buyer.

That purchaser was certainly a chancer but the discrepancy was not huge. My client set their face against it and refused to budge. The buyer walked away. Some months later the seller found another buyer, regrettably the price was somewhat lower than the amended offer the previous purchaser had put in. My client was a little tetchy about it and implied that I should have tried harder to persuade them. I took that as a subtle way of the client acknowledging that I had indeed advised them and that they wished my advice had been taken.

Reading between the lines

Negotiation is tough. Trying to work out where the point of return may be for either party is helpful but not conclusive. Clients may be pushed further (or less) than you think. Their journey to that point (of which you have not been a part) will be influential. An exercise in care is a vital part of advice in this area. The ultimate decision is not yours but the clients. Many times the clients will ask what to do, in the hope that we can take the pain away, however hard that may be. The answer is always that the client must make the final decision. It is they that have to live with the consequences and pay (or reap) the financial rewards.

Understand that in negotiation every action does not necessarily lead to a reaction. This is the classic poker position. The buyer will try to goad the seller. If the seller does not react the wind passes quickly from the buyer's sails. It is easy to spot when you know that a buyer is virtually ready to proceed, particularly when they have told everyone how the furniture has been purchased and notices have been given on their rented accommodation. Don't push them into a corner by being rude back again, simply don't react, give them an honourable way out (even if they do not deserve it). Dealing calmly will usually be more productive.

Finally accept that sometimes there simply is no deal to be done. Parties may be too far apart, or their expectations have moved on. Maybe one or other of them has a plan B which has been put into operation. Remember the old adage: if the horse is dead stop flogging it.