Independent Legal Advice
24/05/2023
(Last Updated: 12/06/2023)
23,673
9 min read
Key Takeaways
- If you're involved in a transaction where you are put at risk, without getting any benefit from it, you must get an independent legal advice certificate from a solicitor, attesting that you fully understand the risks.
- The legal advice must be given by an independent solicitor, in order to avoid conflicts of interest.
- Before, legal advice used to be given in person, during a face to face meeting. However, you can now get independent legal advice online, via video conference. This is a service we can help with.
- Skip to our Frequently Asked Questions for other details or a breakdown of costs.
Getting legal advice from an independent solicitor is a mandatory requirement in a transaction where a party is placed at risk, but doesn't get a direct benefit from. The advice is provided by a solicitor who is independent to the transaction and the meeting is held face to face, historically in the same room, however Skype is a more common practice.
What counts as independent legal advice?
During a meeting with your independent legal advice solicitor, the risks and terms of your transaction will be explained to you. The process is as follows:
Book a meeting with a solicitor and send your documents for review.
During the meeting, the solicitor will verify your identity and explain the risks to you.
An independent legal advice certificate is provided as proof.
At the solicitor's discretion, the certificate can be sent to your acting conveyancer/solicitor.
When should you seek independent legal advice?
The most common transactions requiring independent advice from a solicitor are:
Service | What advice is required? |
Directors Guarantee | Directors of a company are required to get legal advice when obtaining a mortgage. The guarantee makes the director personally liable to pay back the mortgage if the company defaults on the mortgage. You can read more here - Directors guarantee |
Joint Mortgage Sole Proprietor | For parents helping their children buy a home or even unmarried couples where one party already owns another property so as to avoid second home stamp duty. They are on the mortgage but not the legal title so the lender needs the solicitor to advise of the risk of being liable for the mortgage debt. You can read more here - Joint Mortgage Sole Proprietor Mortgages |
Occupier Waiver Form | For occupiers over 18 the mortgage lender requires them to sign a waiver to waive any rights to the live in the property if the lender needs to repossess. You can read more here - Occupier Consent Form |
Second Charge | Where a party is liable for a mortgage/second charge and the money is being used for something hey don't benefit from, the mortgage lender requires them to get legal advice of the risk. |
Deed of Trust | Where joint owners draft a deed and require a solicitor to provide legal advice to one of the beneficiaries about the terms. |
Separation agreements (such as divorce) | A review of the separation agreement at the end of a break-up. |
This legal advice is often obtained toward the end of the transaction (purchase or transfer) with a focus on needing the advice quickly - which we can help with as we provide next day appointments via Skype.
It can often be difficult to find a solicitor who provides the requisite legal advice as many see the work as too high risk, especially following the court case Padden v Bevan Ashford Solicitors where the solicitor was ordered to pay the client £67,000 for not providing adequate legal advice. At SAM Conveyancing we can help with a wide variety of advice service near you or over Skype.
Need Independent Legal Advice?
- Appointments available from 04/12/2023
- Video conference to your own home/work
- Slots from 9am to 5pm
- Fast turnaround from an experienced solicitor
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Why do you need Independent Legal Advice?
It is important to note that all legal advice should be independent. The reason you need further independent advice is when you are completing a joint transaction where you both want the same transaction to complete, however you have potentially conflicting interests that need further explanation in order to help you fully understand the implications on you individually when the transaction completes.
In conveyancing transaction, once the ILA has been provided, the solicitor issues a Certificate of Independent Legal Advice to the acting solicitor for the transaction or directly to the mortgage lender.
ILA example - Transfer of Equity
John and Mary jointly own a property and they are separating so only John will own the property. Although the transaction to transfer the property from John and Mary to John solely is the end result for both, Mary will be advised to seek separate Legal Advice so that she is has legal advice from a solicitor who is acting solely in Mary's best interests.
This advice could include explaining that Mary will no longer be a legal owner of the property, or support in understanding how much Mary is to be paid for her share of the property and whether this equates to her.
ILA example - Joint Mortgage Sole Proprietor ('JMSP') Mortgage Condition
With a JMSP mortgage product up to four people can be on the mortgage deed however the legal owners of the property may comprise only some of those on the mortgage. It is a required legal advice mortgage product often used by parents helping their children buy their first home as the child's salary combined with their parent's salaries makes the mortgage product more affordable.
For this type of mortgage product, the mortgage lender will always require the party/ies who are liable for the mortgage, but who aren't legal owners to seek legal advice.
The instruction from the bank might be similar to this: "The legal adviser must explain the content and effect of the first legal mortgage over the Property to CLIENT NAME and arrange for it to be executed. The legal adviser must also complete the attached standard letter confirming that legal advice has been given. The borrowers must pay any fees relating to this matter."
The legal advisor will then complete a Certificate of Independent Legal Advice which will contain the following: "I confirm that I act for CLIENT NAME. I have explained the nature of the Legal Charge and the consequences of signing the first legal mortgage over the property in conjunction with the proposed mortgage application. CLIENT NAME wishes to proceed with this mortgage. I have explained that you require confirmation that I have given this advice so that CLIENT NAME may not dispute being legally bound by the mortgage and I confirm that I have the authority of CLIENT NAME to give this confirmation".
With SAM Conveyancing:
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Written by:
Andrew Boast
Andrew started his career in 2000 working within conveyancing solicitor firms and grew hands on knowledge of a wide variety of conveyancing challenges and solutions. After helping in excess of 50,000 clients in his career, he uses all this experience within his article writing for SAM, mainstream media and his self published book How to Buy a House Without Killing Anyone.
Reviewed by:
Caragh Bailey
Caragh is an excellent writer in her own right as well as an accomplished copy editor for both fiction and non-fiction books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey and mortgage related articles.
