Terms of Business
At Deans Solicitors and Estate Agents LLP we value our reputation for professional standards. We are committed to providing you with the highest quality of service and handling your instructions to us with professional skill, care and attention. We believe it is important to establish a clear understanding of the basis upon which we provide our services. These terms of business set out the terms and conditions which apply when you instruct Deans Solicitors and Estate Agents LLP to act on your behalf. If work has already commenced on your matter then, unless you notify us immediately in writing to the contrary, you agree that these terms of business apply retrospectively from the start of the work on the matter. These terms of business are subject to any letter of engagement issued with them. They will be deemed to apply for this and all subsequent transactions, unless otherwise notified in writing. If we have failed to communicate any point clearly, please contact us and we shall be happy to give an explanation.
1. Quality of Service
In all our dealings with our clients we aim to provide a high quality service, to find out what our clients want, and achieve it. We try to work quickly and efficiently, and we hope you find us friendly and approachable. A nominated solicitor oversees the business of each client. At the outset of our carrying out work on your behalf you will be informed as to who will have responsibility for dealing with your work and who will be your main point of contact.
2. Client and Source of Funds Verification
The Law Society of Scotland and the Money Laundering Regulations require us to obtain satisfactory evidence as to the identity of our clients BEFORE we can act on their behalf. We will require you to complete as soon as reasonably practicable a compulsory online ID verification process and you will be responsible for the administration fee in obtaining the same. We are also required to understand and evidence that money used to settle transactions could not have been obtained or used in any unlawful manner. We understand clients can consider it intrusive to be required to provide the evidence we require but we ask for your assistance in helping us comply with our legal obligations.
You should be aware that we are unable to settle transactions without this information and settlement delays will arise if satisfactory information and documentation cannot be achieved timeously. If you do not or cannot supply that information we are unable to carry out any work for you. Such evidence must be obtained in respect of all parties for whom we act under these terms of business, including individuals and corporate bodies. We are also required to verify the source of funds passing through our hands, where these are provided by a third party. In these circumstances you accept that we are entitled to make such enquiries of you and/or others in order to satisfy ourselves of the source of such funds, and that you must provide us with the relevant information immediately on request.
We do not make payments of surplus proceeds at settlement to third parties. All funds due will be repaid directly to the client. Before payment can be made we will require to have sight of a bank statement or bank card showing the account number to which the funds are to be transferred and showing you as the account holder. Where we are instructed jointly by more than one person then any surplus funds can only be made to an account in the joint names of all clients unless we receive written authority from all clients to pay to an account in the sole name of one client.
3. Instructions
Instructions may be given to us in writing or verbally. We may ask you to confirm in writing the terms of verbal instructions given to us, which, when required, should be done by return of post. If there is any change in your instructions you must notify us immediately. If you wish anyone other than yourself to give us instructions or information, you must confirm this in writing. You must let us have full details of each matter so that we can advise on the issues raised and how they may be dealt with. We rely on the information given to us by you to understand your position and to carry out our work. It is very important that we are given as much information as possible and are told about anything that may be relevant to the work we are instructed to carry out for you. Unless we agree otherwise in writing, we shall assume that where we act for more than one person but only one of them tells us what to do, that person has the authority of the other(s) to do so. Where we do act for more than one person, each person for whom we do work is jointly and severally responsible for the instructions given to us and for payment of our fees and outlays in connection with that matter.
4. Communication by external E-mail
We may communicate with you electronically which could include correspondence pertaining to your transaction and html Newsletters which we feel could be of interest to you unless you expressly request otherwise. We may also receive electronic communications from you. The electronic transmission of information by e-mail or otherwise has inherent risks and you understand that such communications may become lost, delayed, intercepted, corrupted or be otherwise altered, rendered incomplete or fail to be delivered. We shall use our reasonable endeavours to ensure that electronic communications are free from viruses and any other material which may cause harm to any other computer system. You undertake to do likewise with any electronic communication sent by you. You accept that because electronic transmission of information cannot be guaranteed to be secure or error-free and that its confidentiality may be vulnerable, we shall have no responsibility or liability in respect of such matters other than arising from our bad faith or wilful default. We provide an unsubscribe facility on our emails.
5. Timescale
The nature of legal work often makes it difficult to estimate how long a matter will take to complete. We will advise you at regular intervals regarding the progress of your work and keep you informed of all significant developments. If you are uncertain about what is happening at any time, please contact the solicitor responsible for your work. While we will endeavour to complete the matter as quickly and efficiently as possible, please remember that the speed at which work can be completed is affected by the co-operation we receive from third parties.
6. Conflict of Interest and Confidentiality
We cannot act for two or more parties if they have conflicting interests. Please advise us at the outset if you are aware of potential conflicts, which may arise. We may need to decline your instructions if there is such a conflict. If you or we become aware of a possible conflict in the course of our acting for you we may require to cease to act on your behalf. You will remain responsible for our fees for the period to the date on which we cease to act. We treat all client information and documents as confidential and privileged unless you waive such confidentiality or we are required to divulge it by law. In the course of our acting on your behalf it will be necessary for us to hold information, which you may give us or which we may obtain on your behalf from third parties. In instructing us you agree that we may use such information in the ordinary course of acting for you.
7. Copyright and Third Parties
All copyright in documents we produce is reserved to us. Advice given and documents prepared are for your use only and may not be copied or used by any third party without our express written consent.
8. Private Limited Companies
If we are given instructions by a private limited company then, unless otherwise agreed with you in advance, it is a condition of our accepting these instructions that the directors are jointly and severally liable along with the company for payment of our fees and costs and any interest thereon.
9. Professional Fees, Expenses and Disbursements
Our fees are based on a number of factors including: the complexity of the work or matter; the importance and value of the subject matter; the time spent on your work; the volume and importance of documents to be prepared or reviewed; the degree of urgency (including any significant overtime requirements); the seniority of the personnel involved. Time spent by our personnel may include advising, meeting you and others, considering documentation, entering into correspondence, research, engaging other advisors, telephone calls, travelling and waiting time. Where a basic hourly charge rate has been indicated it is that which is then current. As and when our hourly charge rates are reviewed the amended rate will be applied. Photocopies, couriers etc and disbursements to third parties will be charged in addition.
We are generally prepared to provide estimates of our charges or where appropriate a fixed fee quotation. Any estimate that may be given will be a probable fee based on our experience of the work you have asked us to do. It should be treated as a guide only and may not be regarded as an agreement to provide a service for a fixed fee or within a fixed time period, unless otherwise agreed. If the work turns out to be more complicated or takes longer than we anticipated we may require to review our estimate or quotation to take account of this. We shall inform you as soon as possible about this. Estimates or fixed fee quotations will always be subject to review if the nature and/or amount of the work involved changes as the instruction proceeds. Where possible we will provide you with a written updated estimate of costs as soon as it appears to us that an estimate or fixed fee quotation needs revision. Unforeseen complications or developments may have cost implications and you should notify us of these as soon as you are aware of them.
In certain types of work there is frequently considerable uncertainty as to the likely fee as this will be entirely dependent on what happens in the course of the conduct of the matter. Consideration also needs to be given as to whether it makes economic sense from a cost point of view to pursue a particular matter.
In relation to any estate agency instructions; if for any reason you decide to withdraw a property from the market or transfer agency or should we require to withdraw from acting due to your failure to provide us with satisfactory verification of source of funds or your identification there will be a cancellation/withdrawal fee of £300 plus V.A.T (at the then applicable rate) payable to us immediately. In addition to this fee any outstanding E.S.P.C. fees, Viewing Charges, advertising charges or legal fees and outlays for work undertaken on your behalf will also become payable on demand. Any instructions from you to withdraw a property from the market or transfer agency shall require to be given in writing and provide 14 days notice of the property withdrawal or transfer of agency. In the event of an acceptable offer being received for the property during the notice period then the full Estate Agency fee will become due. You agree that while the property is marketed by us on your behalf we shall be the sole selling agents.
If you choose to advertise your property as coming soon by applying a coming soon notice to the Deans Solicitors and Estate Agents LLP For Sale Board before it is launched to the market, you are agreeing that you are committed to and are liable for all estate agency fees and terms as set out in the selling pack and these Terms of Business. This includes all costs incurred e.g. ESPC registration, schedule production and Home Report. Should you decide to withdraw the property, transfer agency or sell it off market during this period, there will be a cancellation/withdrawal fee of £300 plus V.A.T (at the then applicable rate) payable to us immediately. This is in addition to any fees and outlays for which you will be liable as outlined above. Any instructions from you to withdraw a property from the market or transfer agency shall require to be given in writing and provide 14 days notice of the property withdrawal or transfer of agency.
Circumstances may arise in which we consider that we can no longer act for you, either generally or in connection with a particular matter. These circumstances might include any of the following:
In the event of improper or unreasonable instructions, if you fail or continually delay to pay outstanding accounts or fail to put us in funds to cover fees and outlays when requested to do so, if we find that we have a conflict between your interests and those of another client and we believe that it is in your best interests to seek other advice, if any other circumstances occur which make it unreasonable for us to continue from acting for you. Such circumstances you would be liable for the cancellation/withdrawal fee of £300 plus V.A.T, our fees, all outlays and outstanding costs in respect of the period up to the time we cease to act in connection with a particular matter. You would also be liable for reimbursement for any Home Report fee settled on your behalf.
In the event of an acceptable offer being received for your property, which we acting reasonably deem to be acceptable (for the avoidance of doubt any offer which is less than 95% of the current Home Report Valuation will not be deemed acceptable for the purpose of this clause) and which you choose to reject then we shall be entitled but not obliged to withdraw from acting for you and the full estate agency fee previously quoted plus V.A.T. and any outstanding outlays or other costs up to the time when we withdraw from acting will be payable within 14 days of the date of our serving notice of our withdrawal from acting on your behalf.
10. Billing Frequency
Our bills may be issued on an interim basis as work in progress accumulates or, on completion of, or at a natural break in the course of the relevant matter unless a separate agreement is reached with you in writing. As appropriate we may ask clients to make a payment on account of fees and outlays at the outset and during the conduct of the work. With regards to Estate Agency Costs; any costs over and above the Estate Agency Fee for selling your property need to be met by you as and when they are incurred, this could include an array of items such as advertising costs, viewing charges, additional sales particulars, inspection reports, key cutting and other miscellaneous items. Alternatively you could arrange to place monies on deposit with us in advance or we could arrange to bill you on a monthly basis in relation to these items.
11. Terms of Payment
Accounts issued by us whether for final or interim fees or for outlays are due for payment on presentation. We reserve the right to charge interest at 1% per month (APR 12.68%) compound at monthly stops on any debit balance. We will not normally be prepared to continue acting on your behalf should fees remain outstanding over 30 days or if the credit limit on your account has been exceeded. If we cease to act for any reason, the full amount of work carried out and outlays incurred up to that date and presently unbilled will then be billed to you. We reserve the right to deduct fees & outlays we have incurred on your behalf from sums held by us on your behalf before we remit monies to you and to exercise a lien on all papers held by us in respect of our unpaid fees and outlays. Even where arrangements exist whereby you have an entitlement to recover fees from third parties, you are primarily responsible for payment of our fees in accordance with these Terms of Business.
Where we agree to defer the payment of costs due by you, such amounts will be agreed at the outset of the transaction and be for a maximum of six months, at which time we are entitled to payment in full.
12. Sales and Purchases of Property: Cleared Funds
When you are selling property, we will deduct all outstanding costs together with our fees from the sale proceeds as soon as practicable after the date on which the sale is completed, at the date of settlement there can be undetermined outlays associated with the sale that are not yet known to us and we therefore reserve the right to hold back a contingency fee of £75 from the sale proceeds for a period of six weeks to cover any potential costs. In the event that there will be insufficient free proceeds to meet all outstanding fees and costs then you shall require to make payment of all outstanding sums due prior to completion of the sale of the property. When you are buying property, fees and costs will be payable by you by agreement, but no later than the date on which you become the owner of the new property, again there can be undetermined outlays associated with the purchase that are not yet known to us and we therefore will reserve the right to charge a contingency fee of £100 which shall be held by us for a period of six weeks to cover any potential costs. Financial transactions carried out upon your behalf will be effected only when we hold cleared funds. We require payment prior to settlement of your own contribution towards the price, any outstanding outlays and all fees due into Deans Solicitors and Estate Agents Clients Account by means of CHAPS transfer. We will not accept payment by Building Society Cheque or Banker’s draft. We accept payment by credit card solely at our discretion. We do not accept credit card payment for part payment of the purchase price or mortgage redemption. Where such a facility is made available it must be used within 14 days of the invoice date. Credit card payments cannot be made for outlays which are required prior to completion of a sale or purchase of property (e.g. Land Building Transaction Tax, Additional Dwelling Supplement and Registration Dues) unless the payment is made at least 7 days prior to completion. Please be aware that as well as our obligation in respect of money laundering rules we also have obligations under the Proceeds of Crime Act 2002. In certain circumstances we are required to report any evidence or suspicion of money laundering or criminal activity to the National Crime Agency (NCA) (including but not limited to any arrangement which we know or suspect facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person even where the suspicion relates to the property to be transferred to you by another person). We are prohibited from intimating to you the fact that such a report/disclosure has been made. In certain circumstances we may be required by NCA to cease acting on your behalf. All data we hold to assist our legal obligation to verify our clients and the source of their funds will be held by us solely for that purpose.
Settlement of any property sale shall be done by a bank transfer of cleared funds.
Unless otherwise requested by you all free proceeds once cleared as above shall be paid by same day electronic bank transfer to an account held in your name/s. The cost of such transfer will be £30 inclusive of VAT at the current prevailing rate which shall be deducted from the funds prior to transfer. Alternatively, the free proceeds can be transferred by a 3 working day BACS transfer at a cost of £10 inclusive of VAT at the current prevailing rate, or a 1 working day Faster Payment at a cost of £10 inclusive of VAT at the current prevailing rate. Amounts over £250,000 will only be made by same day bank transfer at a cost of £30 inclusive of VAT per transaction.
13. Purchasers of Property: Survivorship Clauses
Where we are instructed by more than one person in a property purchase transaction we shall assume that the title to the property concerned is to be taken in the joint names of those persons in equal shares unless we receive instructions to the contrary. We will not include survivorship clauses (clauses to the effect that on the death of one of the parties, their share of the property is to pass automatically to the survivor(s) without specific instructions to that effect from all of the parties instructing us.
14. Sales and Purchases of Property: Post Settlement Claims
In ordinary course the fee which we charge for a sale or purchase transaction does not include any work carried out for post settlement claims raised in terms of the missives. However, as a gesture of goodwill we will normally write 2 to 3 letters on clients’ behalf to help to resolve any matters. If further work in respect of such matters is instructed, we will charge for the work at our normal hourly rates.
15. Independent fee assessment
The Auditor of Court is always available to provide a completely independent assessment of a fair fee for any piece of legal work carried out for a client. On occasions, to ensure that a file has been correctly charged, we may voluntarily send the file to the Auditor. Unless otherwise agreed with you beforehand, we will in that event be responsible for payment of the Auditor’s fee. Should you at any time be dissatisfied with the amount of a fee charged by us, then you are entitled to ask us to have the Auditor review your file and set an appropriate level of fee for the work done. If the Auditor reduces the amount of our original fee we will only charge that reduced amount and the Auditor may require us to meet his costs. If, however, the Auditor confirms that our fee is correct or undercharged, then you will be responsible for the Auditor’s costs.
16. Outstanding Monies
You are entitled to change solicitors at any time but you are responsible for the fees and any other outstanding payments due to us until the time of change. We are entitled to hold any title deeds, files or other papers until payment in full of all outstanding sums due to us in respect of either outlays or fees for work carried out on your behalf
17. Client Satisfaction
If for any reason you are unhappy about the quality of service provided, or the amount of our fees, then you should in the first instance, take the matter up with the solicitor with whom you have been dealing. Alternatively, should you prefer or if you feel your initial approach has not resolved the point, we would invite you to raise the matter with our Client Relations Officer, Laura Walker, by emailing Laura.Walker@deansproperties.co.uk or mail@deansproperties.co.uk. We will ensure that any such complaint is fully investigated, and that you receive a detailed response within ten working days.
If you are still dissatisfied you are always entitled to take the matter up with the Client Relations Office at the Scottish Legal Complaints Commission (SLCC), The Stamp Office, 10-14 Waterloo Place, Edinburgh, EH1 3EG. Please only pursue this option once you have attempted to resolve the matter with our Clients Relation Officer. We would advise that the SLCC operates strict time limits for accepting complaints, which require complaints to be made within three years of the service ending or the conduct occurring. However, they will disregard any time it considers that you were excusably unaware of your concerns.
18. Professional Insurance
In relation to any instruction you give us and services we perform on your behalf, the aggregate liability of Deans Solicitors and Estate Agents LLP and its partners, members, employees and agents for negligence or breach of contract on its or their part shall not exceed the lower of (1) the amount, if any, specified in any Letter of Engagement between us and you and (2) £2,000,000. We shall not be liable for any indirect or consequential loss or damage (including but not limited to any loss of profits, goodwill or anticipated savings or other benefit(s).
We shall not be responsible for the consequences of, and shall not be liable for, any loss caused to you or any third party arising from any misleading, incomplete or erroneous instructions or information given by you or where information or instructions are not given timeously. In respect of a claim by such a third party in such circumstances you will wholly indemnify us in respect of that claim.
In the event that you suffer or incur any loss, cost, damage or expense resulting from or arising from any matter carried out for you then you accept that your claim will lie solely with Deans Solicitors and Estate Agents LLP and you agree not to bring any claim personally against any individual partner, member, employee or agent of Deans Solicitors and Estate Agents LLP (“Deans Solicitors and Estate Agents Individuals”) and the benefit of the limitations and exclusions of liability set out or referred to in these terms of business shall be held by Deans Solicitors and Estate Agents LLP as agent and trustee for each of the Deans Solicitors and Estate Agents Individuals.
19. Clients Funds
We are members of the Law Society of Scotland and subject at all times to its rules and regulations. In accordance with these, all funds received by us on our clients’ behalf are held separately from our own funds in clients’ accounts. We advise that any funds held by us on your behalf shall be deposited with the Royal Bank of Scotland plc. If you wish your funds to be deposited in a different Bank or Banks then you will require to provide us with specific written instructions to that effect. Any funds held by us will not attract interest unless we anticipate it shall be greater than £100 per annum. Interest, if applicable, will be payable on balances at 50% of the then current base rate of the Royal Bank of Scotland plc and which interest shall be shared between you and Deans Solicitors and Estate Agents LLP.
20. Taxation
We will assume, unless you notify us to the contrary, that you have taken appropriate advice as to the taxation implications of any matter. If taxation may be a relevant issue then you should seek separate tax advice. For the avoidance of doubt we shall not provide any taxation advice. Please note with effect from 5 April 2020, Capital Gains Tax on the sale of certain properties will become due within 30 days of settlement and not through annual tax return declarations. If you are concerned this may affect your transaction we can direct you to a tax adviser familiar with these changes but cannot ourselves give tax advice.
21. Key Dates
Unless we have agreed with you otherwise, we are not responsible to log, diarise and remind you of key and/or important dates which may require action by you. These are your own responsibility and you should have adequate systems in place to ensure they are not missed and/or overlooked. This also applies to key dates which are dependent upon external factors and/or events of which we may not be aware. However, this does not apply to any key dates which are directly covered by your instructions to us and which fall within the scope of our work to be performed for you.
22. Data Protection
Deans Solicitors and Estate Agents LLP is a data controller within the meaning of the Data Protection Act 1998, the General Data Protection Regulation 2016/679; the UK Data Protection Act 2018 and all relevant EU and UK data protection legislation (Data Protection Law) While acting for you, we may acquire personal data about you. We are committed to complying with our responsibilities under the Data Protection Law in respect of such personal data. By engaging us to act for you on this matter, you consent to our collecting and storing certain personal information which will not be used other than in the normal course of providing advice to you. This may include the disclosure of personal information to our business partners or third parties, including by electronic means, as would be necessary for the completion of your work. We will share it with LGD Services Ltd for the purposes of providing Estate Agency services. LGD Services Ltd will also be a data controller within the meaning of the Data Protection Law. We may contact you from time to time to inform you of products or services that may be of interest to you. You should notify us in writing if you do not wish to receive any further contact or if you wish to receive details of the personal data held about you. If you do not consent to the disclosure of your personal data, please contact us immediately. We shall retain personal data for as long as is required in accordance with good business practice and the LLP’s policy on document retention. We shall use our best efforts not to retain information about you once it is no longer required.
23. Records
At the end of the transaction or litigation we will keep our files and papers (except for any of your papers which you ask to be returned to you) until such times as they are destroyed in accordance with our normal practice. You accept that your files may be stored by electronic means. We shall not destroy documents you ask us to deposit in safe custody. We shall, however, pass on the relevant costs to you. However, we reserve the right to make a charge based on our then current hourly rates for the time we spend reading papers, writing correspondence and/or carrying out other work necessary to comply with your instructions.
24. Forwarding Address
We may provide your forwarding address to third parties. For example, to include the Local Authority for the apportionment of council tax purposes or to relevant Factors or Residents Associations.
25. Factors
The property you are selling or purchasing may benefit from a Factoring or Residents’ Association. It is your responsibility to liaise with the relevant body following settlement to ensure their records are updated accordingly and where required any monies paid/apportioned.
26. Investment work on your behalf
The practice unit has limited its incidental financial business activities to arranging indemnity policies and bonds of caution given the limited scope of activities allowed under the incidental financial business regime. The practice unit of Deans Solicitors and Estate Agents LLP is licensed by the Law Society of Scotland to carry on incidental financial business under the Solicitors (Scotland) (Incidental Financial Business) Practice Rules 2004. The practice unit of Deans Solicitors and Estate Agents LLP is not authorised by the Financial Conduct Authority under the Financial Services and Markets Act 2000. The practice unit of Deans Solicitors and Estate Agents LLP has Professional Indemnity Insurance under the Law Society of Scotland of Scotland’s Master Policy. The current level of indemnity on the Master Policy is £2m per claim. In addition Deans Solicitors and Estate Agents LLP have top up Indemnity Insurance cover for an additional £1m per claim. The practice unit of Deans Solicitors and Estate Agents LLP is also covered by the Scottish Solicitors’ Guarantee Fund which is a fund established by Section 43 of the Solicitors (Scotland) Act 1980 for the purpose of making grants in order to compensate persons who, in the opinion of the Council of the Law Society of Scotland suffer pecuniary loss by reason of dishonesty on the part of a Scottish solicitor in connection with the practice of the solicitor.
27. Commissions
Where from time to time in the course of work on your behalf we receive a commission or other such payment, we shall retain this within the firm and not necessarily account for it to you.
28. Whole Agreement, Variation of Terms and Acceptance of Terms
These terms and conditions, together with the letter accompanying them and any enclosed schedule of costs, will form the whole agreement between us to carry out the work referred to in that letter. We are entitled to vary these terms of business at any time by giving you fourteen days prior written notice. Your continuing instructions to us will confirm you acceptance of these terms of business.
29. Applicable Law
These terms and conditions are governed by the Law of Scotland and are subject to the jurisdiction of the Scottish Courts.