Professional standards in conveyancing searches

• Author: S A A Cooper
• Position: LLB, LLM, MPhil, Dip C L, AFSALS, Attorney at Law, Cayman Islands Law School
• Pages: 36-58

PROFESSIONAL STANDARDS IN

CONVEYANCING SEARCHES

SA A COOPER*

A. INTRODUCTION

The purpose of this paper is to identify and describe appropriate standard

conveyancing searches to be carried out by lawyers acting in the purchase of

residential property. It is directed at conveyancing in the Cayman Islands, but

many of the principles are equally relevant to other Caribbean jurisdictions. The

paper establishes the criteria to be utilised in defining appropriate searches by

reference to principles of lawyers' professional duties and standard practices.

These principles are then applied to the official sources of information held in the

Cayman Islands concerning land. The paper concludes with a proposed set of

standard conveyancing searches suitable for residential transactions.

The value of this paper lies in the facts that there is no published material on

this topic and there is a lack of consistency in conveyancers' practices, yet

residential conveyancing represents a significant element of legal practice

particularly for the small and medium sized law firms in the Cayman Islands.

Unlike England and many Commonwealth countries, the legal professional

bodies of the Cayman Islands have issued no guidance on recommended

standards in conveyancing. Furthermore, there are no local decisions on

professional negligence in conveyancing searches to be used as guidance.

SCOPE

AND PURPOSE OF PAPER

The paper is confined to residential property, that is, property which has

already been physically adapted to residential use by the construction of a

suitable building and which the purchaser intends to use for residential purposes.

Various further issues arise on the purchase of commercial or undeveloped land

S A A Cooper LLB, LLM, MPhil, Dip C L, AFSALS, Attorney at Law, Cayman Islands Law

School

which affect the searches and other procedures for the purchaser's conveyancer.

These are heavily dependent upon the context and are not examined here.

The paper will first formulate an appropriate theoretical basis for

conveyancing searches based on the conveyancer's duty of care in investigating

and advising on title. This requires a consideration of the nature of the duty of

care and the standard of care to be applied in conveyancing searches. As a

common law jurisdiction, the Cayman Islands adopt common law provided it is

not unsuited to local conditions. The body of English case law on the topic,

particularly illustrated in negligence actions, is therefore relevant. However, care

must be taken when deducing general principles from and applying the English

case law since the judgments in England are heavily dependent upon the context

of English conveyancing. Efforts have been taken to consider their value in

determining their possible application to the Cayman Islands.

Next, the paper seeks to determine which of the sources of information

described should be searched in fulfilment of the conveyancer's duty of care. The

principles defining the scope and standard of the duty of care are applied to the

context of Cayman conveyancing in order to identify the searches which are and

are not required by the principles of professional negligence in the Cayman

Islands.

Finally, the paper relies on the preceding analysis to prescribe a set of

standard searches for use by conveyancers acting the purchase of residential

property.

METHODOLOGY AND SOURCES

For the purpose of identifying the scope of the duty of care and the standard

required, the paper relies heavily on case law. Additionally, for the purpose of

determining the usual practice of conveyancing attorneys, interviews were

arranged with ten attorneys, representing eight law firms, during the second half

of 2003 and the first half of 2004. This represents a large percentage of the

Cayman Islands attorneys who practise residential conveyancing.

As well as interviewing attorneys, interviews were arranged with senior

members of the various institutions holding information relevant to land under

statutory mandate. Because of the paucity of literature produced by the

institutions concerned, the primary purpose of the interviews was to obtain

confirmation of details of the nature of information held and how it could be

practically searched by conveyancers. At some interviews it was also asked how

frequently the proposed type of search was already being carried out by

conveyancers to corroborate the results of the interviews with attorneys.