Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

Prospective

17 Qualified conveyancers. S

(1) The Board shall establish and maintain a register of qualified conveyancers, which shall be available for inspection by any person without charge.

(2) Where, on an application made to them by a natural person in such form as they may determine, and on the provision of such information in connection with the application as they consider necessary, the Board are satisfied that the applicant—

(a) is a fit and proper person to provide conveyancing services as a qualified conveyancer; and

(b) complies with the requirements of rules made under subsection (3) below,

the Board shall grant the application and shall enter the applicant’s name in the register of qualified conveyancers.

(3) The Board shall, subject to subsection (15) below and after such consultation as they consider appropriate, make rules as to the requirements to be satisfied by any person applying for registration under subsection (2) above, and such rules shall, in particular, make provision as to—

(a) educational qualifications; and

(b) practical training.

(4) Where the Board refuse an application under subsection (2) above they shall give the applicant written reasons for their decision.

(5) Where the Board refuse an application under subsection (2) above the applicant may, within 21 days of the date on which the Board’s decision is intimated to him, apply to the Board to review their decision.

(6) Where the Board have reviewed a decision mentioned in subsection (5) above the applicant may, within 21 days of the date on which the outcome of such review is intimated to him, apply to the Court of Session and the Court may make such order in the matter as it thinks fit.

(7) Where a qualified conveyancer informs the Board that he intends to provide conveyancing services to the public for a fee, gain or reward and—

(a) satisfies the Board that he has made adequate arrangements for the satisfaction of any successful claims against him arising out of such provision by him of such services; or

(b) participates in the arrangements made by the Board for that purpose under subsection (13)(b) below,

the Board shall make an annotation on the register against his name to the effect that he is an independent qualified conveyancer; and where he subsequently informs them that he intends to cease providing such services to the public for a fee, gain or reward, they shall remove that annotation.

(8) Any person or body other than—

(a) an independent qualified conveyancer; or

(b) a solicitor; or

(c) an incorporated practice within the meaning of section 65 of the 1980 Act (interpretation); or

(d) a multi-disciplinary practice within the meaning of that section,

who employs a qualified conveyancer under a contract of employment for the purpose of providing conveyancing services for persons other than himself or, as the case may be, themselves, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(9) Where a qualified conveyancer applies to the Board to remove his name from the register the Board shall—

(a) where, in the case of an independent qualified conveyancer, they are satisfied that he has made adequate arrangements with respect to the business he then has in hand; and

(b) in any other case, without further enquiry,

grant the application and amend the register accordingly.

(10) The Board shall send to the Keeper of the Registers of Scotland—

(a) as soon as practicable after 1st April in each year, a list of all qualified conveyancers; and

(b) written notice of any subsequent change to the register of qualified conveyancers.

(11) The Secretary of State shall, subject to section 40 of this Act and after consultation with such persons as he considers appropriate, by regulations make such provision as he thinks fit with a view to maintaining appropriate standards of conduct and practice of independent qualified conveyancers, and such regulations shall, in particular, make provision with respect to—

(a) the manner in which such conveyancers conduct the provision of conveyancing services;

(b) conflicts of interest;

(c) the contractual obligations of such conveyancers;

(d) the holding of clients’ money; and

(e) the disclosure of and accounting for commissions.

(12) Regulations under subsection (11) above shall be made by statutory instrument and no regulations shall be made under that subsection unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

(13) The Board shall, in relation to the provision of conveyancing services by independent qualified conveyancers, and subject to subsection (14) below—

(a) establish and maintain suitable procedures for dealing with any complaints made to them in connection with the provision of conveyancing services by such conveyancers; and

(b) make suitable arrangements (whether by means of insurance policies or otherwise) to secure that any successful claims made against such a conveyancer in connection with the provision of conveyancing services are satisfied.

(14) Before establishing procedures or making arrangements under subsection (13)(a) or, as the case may be, (b) above, the Board shall submit particulars of the proposed procedures or arrangements to the Secretary of State for his approval.

(15) Before making any rules under subsection (3) above, the Board shall submit the rules to the Secretary of State for his approval, and before approving any such rules the Secretary of State shall consult—

(a) the Director in accordance with section 40 of this Act; and

(b) such other persons as he considers appropriate.

(16) It shall be the duty of—

(a) an independent qualified conveyancer to comply with the requirements of regulations made under subsection (11) above and any direction of the Board under section 20(2)(a) or (b) of this Act; and

(b) the Board to ensure such compliance.

(17) Where, under or by virtue of any enactment—

(a) a warrant of registration is required for recording any deed in the General Register of Sasines; or

(b) an application for registration is required for registering an interest in land in the Land Register of Scotland,

any reference in that or any other enactment or any subordinate instrument to such a warrant or application being signed by a solicitor or agent shall be construed as including a reference to the warrant or application being signed by a qualified conveyancer, and any enactment or subordinate instrument making provision as to the form of such a warrant or application shall, with the necessary modifications, apply in relation to a qualified conveyancer.

(18) A qualified conveyancer who signs a warrant or application by virtue of subsection (17) above shall, in addition to any matters required to be specified after his signature by any enactment or subordinate instrument, specify the independent qualified conveyancer, solicitor or incorporated practice by whom he is employed or, where he is himself an independent qualified conveyancer, his designation as such.

(19) Any person who—

(a) wilfully and falsely—

(i) pretends to be a qualified conveyancer; or

(ii) takes or uses any name, title, addition or description implying that he is a qualified conveyancer; or

(b) being a qualified conveyancer, provides conveyancing services at a time when his registration as such is suspended,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(20) Any qualified conveyancer not registered as an independent qualified conveyancer under subsection (7) above who—

(a) wilfully and falsely—

(i) pretends to be an independent qualified conveyancer; or

(ii) takes or uses any name, title, addition or description implying that he is an independent qualified conveyancer; or

(b) provides conveyancing services to the public for a fee, gain or reward,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(21) Where an offence under subsection (19)(a) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

(a) any director, secretary or other similar officer of the body corporate; or

(b) any person who was purporting to act in any such capacity,

he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(22) Where an offence under subsection (19)(a) above is committed by a partnership and is proved to have been committed with the consent or connivance of a partner, he (as well as the partnership) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(23) Any independent qualified conveyancer who provides conveyancing services upon the account of, or for the profit of, any person other than—

(a) a solicitor;

(b) an incorporated practice within the meaning of section 65 of the 1980 Act;

(c) a multi-disciplinary practice within the meaning of that section; or

(d) another independent qualified conveyancer,

knowing that person not to be a solicitor, incorporated practice, multi-disciplinary practice or independent qualified conveyancer, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(24) Any rule imposed by any professional or other body which purports to prevent a solicitor or any person mentioned in section 32(2) of the 1980 Act (unqualified persons who may draw and prepare documents relating to heritable estate etc.) from—

(a) acting as an employee of an independent qualified conveyancer in connection with the provision of conveyancing services; or

(b) acting on behalf of an independent qualified conveyancer in connection with the provision of such services,

shall be of no effect.