Summer '17 England & Wales

Summer 2017 ISSUE

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FIRST COMMENT IN THIS ISSUE: • SEVEN STRATEGIC FACTORS TO IMPROVE TELEPHONE QUOTES CONVERSION RATES • QUARTERLY LITIGATION REVIEW • ADVERSE POSSESSION OF A RIVER BED - IS IT POSSIBLE? • ENDORSEMENTS - ENHANCING YOUR COVER • PRODUCT CASE STUDY - JUDICIAL REVIEW

Leading Title Insurance

Welcome to the summer edition of our newsletter.

In this issue we have contributions from our regular writers.

Firstly, we have the second of four submissions from business development expert Professor Ian Cooper. He sets out seven strategic factors that will assist with increasing the conversion rate success from telephone quotes. Kevin Lee examines the key points from the litigation sector so far in 2017. Our underwriter contributions for this quarter come from Lauren Kay, who discusses adverse possession of a river bed, and Elizabeth Vyner, who looks at how endorsements to a policy can ensure a client obtains the exact cover they require.

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FIRST COMMENT

Seven strategic factors to improve telephone quotes conversion success

By Professor Ian Cooper Law firm skills trainer / consultant, Author of the Financial Times Guide to Business Development

In my previous article on this critical topic, I wrote about the major research survey into how firms nationwide deal with their telephone quotes calls. It highlighted a catalogue of missed business opportunities. In this article, I summarise the seven key strategic issues that all firms should discuss and debate in their next departmental meeting if they would like to increase their conversion rates success.

1.

Understand that call handlers are in ‘sales’

When it comes to dealing with quotes calls it is vital for your call handlers to understand that they have a ‘sales’ role. This might seem like a statement of the obvious, but all too often, callers are simply ‘processed’ as a matter of

administration. “Give me the details of what you are doing and I’ll email you a quote”. Job done.

Yes, it might mean that calls get dealt with quickly, but what matters most is whether the caller ever becomes a paying client. This common method is simply ineffective.

2.

Challenge and question current methods and track results

One of the most common problems I find in firms of all sizes is that they rarely take time out to stop, actually review their existing methods of dealing with quotes calls, challenge what they are doing and consider conversion results strategically.

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Given the need for this, it is vital for you to have reasonably precise statistical tracking information on the telephone quotes given and your current conversion rates.

There are four basic pieces of information that you should track and gather, to be able to monitor this area effectively.

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How many quotes enquiries do you get per day / week?

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What are your cumulative quotes worth in average revenue terms?

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Volume of quotes calls handled by particular people?

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What are their personal conversion rates?

Once you have this information, you will be in a much stronger position to make decisions about new strategies, structures and techniques and of course to measure future improvements.

the quotes calls handled by 3. Have the right people

It is a fact, all too often overlooked, that some quotes call handlers consistently get better results than others. So making sure you have your best quotes handlers deal with the most calls is a simple but vitally important piece of the strategic jigsaw.

This is so important that I will be devoting an entire article to this subject in a future issue.

– Why should 4. Differentiate someone choose you?

Why should a potential client who telephones for a conveyancing quote choose your firm … particularly if you are more expensive?

The fact is that our research (which is based upon a significant number of mystery calls) indicates that 91% of 4

FIRST COMMENT firms make no attempt to differentiate themselves from their competitors, either during the telephone enquiry or in any follow-up email.

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More repeat business and recommendations Is it not the case that you get a significant amount of business from clients returning and them recommending you to others? Bearing that it mind, it follows that the more clients you have, the more repeat work you will also get in the future.

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Less abortive time on the phone How much time is wasted on the phone giving and emailing quotes to people who never become clients? Consider this. If as a firm you merely handle four quotes calls across your practice per day, you are spending at least 166 hours per year dealing with quotes. This is a significant and pointlessly expensive use of resources if you have a poor conversion rate. If you are going to spend that time, you may as well get the business!

Write down right now why someone should choose you? Now, ask yourself how you communicate those attributes when you are on the phone to them?

If you aren’t communicating or demonstrating these unique selling points to your callers, you are almost certainly leaving cash on the table!

5.

Don’t fall into the price trap The price trap is the automatic assumption that everybody who calls and asks for a quote will only ever choose the cheapest. This is simply not the case. If that is your perception and experience, then I invite you to consider that this is largely because you are either not doing anything else other than giving a price, or you are not handling the enquiry as well as you could.

If you only give the price to those who ask, then it is you who reduces the issue to one of price and you who actually forces them to go to the cheapest.

6.

Understand the benefits of getting good at dealing with quotes calls

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Skills training is the key 85% of firms provide no ‘proper’ training for their call handlers on ‘soft conversational’ sales skills and how to engage and influence those who call for a quote, to actively want them.

What training does take place is usually around administrative tasks, such as how to calculate the fee, Stamp Duty and get an email quotes letter out. This is very different from ensuring that call handlers have the right techniques, personal skills and confidence to engage a caller and get the business.

Of course, there is the obvious benefit that more conversions equal more revenue. However, there are three other tangible benefits to be aware of: •

Increased fees We have found that once a firm has mastered the techniques of getting people to really ‘want you’, it is relatively easy to increase the fees as well. Thus not only do you convert more, but you convert more at higher rates.

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Quarterly litigation review 2017

By Kevin Lee Hill Dickinson LLP

The last few months have seen a wealth of property related cases reported from all variety of tribunals. Of particular interest to those either granting or seeking title insurance are the well-trodden paths of restrictive covenants and prescriptive rights.

Dealing first with prescriptive rights, an interesting recent case is that of Clementina Thavenot v Sophie Patterson (Bristol County Court) reported in May 2017.

This case presented some fairly typical facts in relation to shared access ways. It concerned terraced cottages in Marlborough, Wiltshire. A right of way ran from the public highway down the side and around the back of the defendant’s cottage in order to reach both the back door of the claimant’s cottage and also her garden. The cottages had been built in or around 1797 and it originally belonged to the Savernake Estate who had used them as farm cottages until the 1920s when they were sold off.

The claimant had bought her cottage in 2014 and the defendant had purchased her cottage about 15 months later in 2015. When the

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claimant had purchased her property, she had been told that a right had been exercised over the access way for many years and indeed there was evidence from her predecessors in title and also relatives of the predecessors in title who had visited the property since at least the 1950s.

Unfortunately, when the defendant purchased the land on which the right of way fell, she took a different view. She lived at the property with her partner, Miles Elderfield. They erected large gates over the drive and pathway over which the right of way was claimed. The claimant, therefore, issued proceedings and indeed obtained an interim injunction pending trial.

The application for the interim injunction was settled by the defendant giving Undertakings to the court to unlock the gates, leave them unlocked and not to interfere with the exercise of the claimed right of way pending trial.

The trial took place a year later in May 2017.

The judge heard various witnesses called by both parties. As is often the case the witnesses for the victim, in this case the claimant, were found to be honest, reliable witnesses.

FIRST COMMENT

However, the defendant’s witnesses were found wanting. In particular, the judge found the defendant, Sophie Patterson, to be “very good at making excuses” and he “gained the clear impression that she was convinced that she was right, whatever the legal documents might say”. In addition, “she struck me as rather selfish, in the sense that she did not think about other people but only herself”. As to her partner, Mr. Elderfield, the judge found him to be “very protective of the defendant” . . . “he often deflected awkward questions” . . . and “I think he saw the right all being on the defendant’s side and all the wrong on the other”.

Turning to the legal analysis, this was a case which turned on the evidence of user as of right for the prescribed period of time. The court was satisfied that on the evidence there was, by 1977 or at least 1987, at least 20 years’ user as of right.

Accordingly, a prescriptive right had been proved. This was sufficient under the doctrine of lost modern grant to establish a prescriptive right and he found that he, therefore, did not need to deal with an alternative claim under Section 2 of the Prescription Act 1832. The judge also makes some comments generally as to the doctrine of lost modern grant. He described this “as a head of claim which is very seldom if ever today successfully claimed. This is because it is necessary to show the right has existed since the year 1189”. The difficulty, in this case, was that the cottages were built in 1797” and there was nothing to show that there was any building on the site in 1189.

The most interesting part of the case for me is the fact that the undertakings, having been given to the court in August 2016

to leave the gates unlocked, had been breached by the defendant. The judge was played recordings, audio and visual, in which attempts were made by the claimant to exercise her right of way which had been denied by the defendant or her partner. He was also shown photographs of cars being deliberately parked on the driveway so as to make it impossible for the claimant to move her bins out for collection. They also showed the defendant refusing to move her vehicles and being deliberately obstructive and rude. The judge made a permanent injunction. He was critical of the conduct of the defendant and her partner. Clearly, there were warning signs when the defendant and her partner had bought the property that it was subject to prescriptive rights, and no matter what the claimant had said they had refused to accept the position. As the judge made clear, “if you want to obstruct somebody’s claimed right of way, you must have the law on your side”. In this case, the defendant did not.

So, a permanent injunction was granted in favour of the claimant, and general damages of £5,000 were awarded to the claimant for the interference with her property rights and the conduct of the defendant.

As the trial appears to have lasted at least three days plus the interim injunction application, I would have thought a £50,000-£75,000 costs bill will also follow.

Turning to restrictive covenants, I can honestly say that I have not known a time when restrictive covenants cases have been so prevalent. There have been many recent decisions, both from the courts and the Upper Tribunal relating to modification

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or discharge or applications under S.84 (2) for declarations of invalidity or unenforceability.

Once such decision is the decision of Martin Rodger QC in the upper tribunal reported on 21 November 2016, of Millgate Developments Limited re: Exchange House, Woodlands Park Avenue, Maidenhead (2016 UKUT 515 (LC)).

I mention this case because it concerned an application made to vary a restrictive covenant in breach of which 13 affordable housing units had been built prior to the application and in face of objections. The applicant was represented by leading counsel and whilst the units built in breach of restrictive covenant were social housing, I was interested to see how the applicant would deal with the principle establish in the case of Re: George Wimpey Bristol Limited’s Application (2011) where Wimpey had built houses in breach of covenants and in the face of objections. The tribunal in George Wimpey had refused modification, which led to the demolition of the houses declaring “it is appropriate for the tribunal to make it clear that it is not inclined to award parties who deliberately thwart their legal obligations in this way”. So, in the light of such strong comments from the tribunal, how would it now deal with these social housing units having been built in breach of covenant and in the face of open objection?

The tribunal in Millgate was clearly in a difficult position. It seems to me that they were faced with a clear conundrum of either allowing the application to permit the hitherto unlawful development, or effectively order demolition of the units and the wanton destruction of perfectly good homes and the homelessness of the individuals intending to live in them.

The tribunal, in their judgment, noted the Wimpey decision and refuted any suggestion that a landowner who was in deliberate breach of covenant can confidently assume that the tribunal’s discretion will be exercised in favour of modification

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of discharge. They declared that a readiness to exercise its powers in cases where a development had taken place in breach of covenant would undermine the protection which restrictive covenants afford.

But, the discretion confirmed on the tribunal has to be exercised judicially and not with a view to simply punishing a covenant breaker.

The tribunal was also influenced by an open offer which had been made by the developer to pay the objectors £150,000, together with their costs to reflect the cost of installing a new higher hedge and other intangible factors and general inconvenience.

The tribunal found that proposal constructive and that it was regrettable that it had not elicited a positive response from the objectors. Finally, it seems to me that the killer point was the public interest element and the fact that the decision would not only have an affect on the parties but also on the 13 families who were waiting to be housed in the properties. Accordingly, the tribunal exercised its discretion in Millgate’s favour.

So, does the Millgate case signal a sea change that means the developer, who deliberately flouts restrictive covenants and manages to finish the development before the application is heard, will now more than likely succeed in their application?

Certainly, the fact that the units were social housing units and were going to house 13 families seems to be a key consideration. What also influenced the tribunal appears to have been the offer of cash by the developer to the objectors which is somewhat surprising as it does seem to go against the general principle that the court will not sanction a deliberate covenant breaker simply buying off the breach.

For my part, it shows once again how applications in the Upper Tribunal are something of a lottery.

However, a development which has delivered some form of public benefit, be it flats or houses, places of worship or a public community building is more likely to have a prospect of success postdevelopment than a purely profit-making private development openly built in breach of covenant.

FIRST COMMENT

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FIRST COMMENT

Adverse possession of a river bed - is it possible?

By Lauren Kay Commercial Underwriter

Adverse possession is the factual and intentional possession of land of which you are not the registered proprietor without the owner’s consent for a minimum of 12 years.

Case: 24 November 2016, Port of London Authority (Appellant) V Paul Mendoza (Respondent) Judge: Elizabeth Cook

the application Mr Mendoza claims to have acquired title to an area of the river bed by way of adverse possession, this objection was referred by the Land Registration Division of the First Tier Tribunal (“the FTT”).

By the decision of the FTT dated 7 January 2016 it was determined by Judge Michael Mark that Mr Mendoza had indeed acquired title to part of the land he claimed was his by sufficient evidence of adverse possession.

Background On 16 November 2016 the Port of London Authority (“the PLA”) attempted to register title to part of the bed and foreshore of the River Thames between Kew Bridge and Brentford Ait. The PLA claim to paper title of the land arose from an indenture dated 1857 and the Thames Conservancy Act 1857, this aspect has never been disputed. However at the time of

This decision was appealed by the PLA on the basis that the judge had incorrectly found that the Respondent had the requisite intention to possess the land.

The case for adverse possession The area in dispute is the mooring of a boat known as the Wight Queen which was purchased by a Mr Peter McCrudden in 1997 to be used as his home; this purchase included

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any mooring rights the previous owner may have had.

as to why the boat was moored there which would defy the intent of adverse possession.

Mr McCrudden states he agreed the boundaries of his land with the boat owners either side of the Wight Queen.

The arguments of the original case that the intention to possess was clear were as follows:

In January 1998 Mr Mendoza purchased the Wight Queen from Mr McCrudden which has been his place of residence ever since. He claims his interest was not only the boat itself, but also the land the boat was moored on and treated this as his own “from day one”.

He claims to also have made an agreement with the neighbours as to the extent of his boundaries, dropped anchor and defined his boundaries with additional ropes and rocks.

Mr Mendoza’s possession since 1998 is not sufficient for the 12 years required for adverse possession; therefore Mr McCrudden’s evidence of ownership must also be taken into account.

The issue There are two main parts to adverse possession; the factual possession and the intent to possess.

The main concern here and the basis of the appeal relates to the intention to possess, it is arguable that the Mr McCrudden’s and Mr Mendoza’s intention to possess the land was not obvious to the world at large as there are numerous other explanations 12

1. The boat was being used as a residence rather than just moored on the river bank.

2. The questions over whether the boat was moored on the basis of easement or licence could have easily been answered by the PLA by checking the relevant documents.

However, these points do not extinguish the issues of the intent to possess: 1. A boat is a movable object, it would not be obvious to third parties that it is always in the same place, the intention of the length of stay or indeed how long it has been there?

2. Checking for easements and licences is irrelevant as it would not rule out the aspect of public rights of navigation or persistent trespass.

The PLA argued that the intention to possess is not apparent as there are a number of reasons for the mooring of the boat: 1. Owner had an easement to moor.

2. Had permission for the London Borough of Hounslow.

FIRST COMMENT

3. In exercise of the public rights of navigation which includes the right to moor for a short period.

4. An act of persistent trespass with no intention to take adverse possession.

In this case all four explanations would have been possible.

Decision The intention to possess is not sufficient in this case.

Mr McCrudden’s possession was open to interpretation; his intentions were not clear to an outsider that he intended keep the boat stationary where it was for any length of time.

Mr Mendoza’s possession especially in the earlier years was also unclear, whilst over time the improvements he made to the boat may have implied an intention to remain this was not obvious from the outset of his occupation.

Is adverse possession of a river bed possible?

In the appeal case the Appellant’s representation Mr Christopher Stonor QC makes suggestions as to how the intention could have been made more obvious, examples would include signage stating “private land and mooring” or some sort of construction on the river bed which would support the boat when moored.

Another aspect discussed by the judge here is whether adverse possession is possible given the river is subject to public rights of navigation.

It is not possible to acquire adverse possession of a public highway (R(Smith) v Land Registry 2011) but is this relevant here? A public highway must remain fully open to pedestrians and traffic; this is not necessarily the case with rivers. The mooring of a boat on the bank of a river is not going to obstruct all traffic passing along. In this case the Wight Queen was moored on an area of the river that was sparsely used; therefore its presence did not have an effect on the public’s rights to navigate.

The judge stated therefore that in this instance had Mr Mendoza been able to prove factual possession and intent to possess; the existence of the public rights of navigation would not have affected his claim of adverse possession.

The judge here makes it clear that the simple case of mooring a boat is insufficient for adverse possession, there has to be more, namely the intent to possess must be clear.

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Underwriting Article:

FIRST COMMENT

Endorsements enhancing your cover

By Elizabeth Vyner Assistant Commercial Underwriter

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FIRST COMMENT

Imagine the following scenario: •

Your client is buying a residential property which they intend to convert into a Bed and Breakfast (B&B).

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They intend to either run the business themselves or lease the premises to a third party.

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When carrying out your title review it transpires that the titles contain a condition which states that the property can only be used as a residential dwelling-house. Arguably, the planned use is a breach of this condition which could lead to a neighbour taking action to prevent this use.

To solve the issue you obtain title insurance for your client. However, have you considered all of their potential losses? The following is a helpful guide to what you might consider in these circumstances.

Actual Loss Our standard policy covers actual loss as defined by the policy. This covers a diverse range of potential losses including any or all of the following: 1. The difference between the value of the property before and after an order (being a final order made by the relevant court in respect of the known risk) which prevents the property from being used for the planned purpose, in this case as a B&B. 2. Sums pursuant to an order. These could, for example, include the cost of returning the property to use as a house in the event that the property can no longer be used as a B&B. 3. Sums pursuant to a settlement. These could, for example, include sums expended by virtue of having the title condition varied or removed so the property can continue to be used as a B&B. 4. Sums expended by the insured or that the insured has contracted to expend. These could,

for example, include sums due under a contract for works to convert the house to a B&B. 5. Interest payable by the insured under the terms of a Standard Security.

Legal costs are covered by the policy in addition to the policy amount; these are paid by First Title and are not deducted from the sums covered by the policy.

Whilst our standard policy covers a wide range of heads of loss sometimes enhanced cover is required as your client may feel that our actual loss coverage does not provide sufficient cover for them and their business in the event of a claim, e.g. what if reaching a settlement takes time and the tenant operating the B&B business is unable to pay their rent during this time, with the landlord receiving no income during this period? Cover can be enhanced by adding various endorsements to the policy to extend the heads of loss.

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Some examples of these are as follows:

Loss of Profit Endorsement The party operating the business may be concerned if operation of the business has to cease or trading cannot be commenced as planned whilst a claim is resolved. During this period no income or profit will be generated and your client may be relying on these sums to meet other obligations.

Loss of Profit cover provides cover during a specific period of interruption (which is a period running from the date from which a temporary court order is obtained which prevents the business or trade from being carried out, until a specified date or the date of a final court order (whichever comes first)).

Once a final order is issued, the actual loss section of the policy will kick in.

Loss of Rent Endorsement If your client decides to lease the B&B then the rental income will presumably be their main concern. It could be the case, for example, that the lease of the property allows for suspension of rent in the event the tenant is unable to use the property for the intended purpose. An endorsement can therefore be included which protects the rental income for the property in the event of a claim.

The endorsement would provide cover for the situation where the business is up and running and rent is being paid or, alternatively, where rent is expected from a certain date but the business cannot commence and the tenant is therefore unable to start paying rent.

Rental Liability Endorsement The tenant may be concerned that rent will remain due even after a final order has been made which determines that the property cannot be used as a B&B. This would result in the tenant being liable for rent in relation to a property that they are unable to run their business from. An endorsement can be included which covers the tenant’s rental liability from the date of a final order which 16

prevents them from using the property for their intended purpose until they can legally break their lease by, for example, using the break clause.

Relocation Costs Endorsement The tenant may also require some assistance where they are prevented from using the current property for the purposes of their business in the event of a claim and they are required to move to an alternative property. This endorsement will be available in certain circumstances and will include: (i) the reasonable costs of negotiating the new lease; (ii) reasonable agent’s fees incurred in finding the new property, and (iii) the reasonable costs incurred in moving the tenant’s property to the new location.

Consequential Loss Endorsement There may be other sums that your client will be liable to pay during a period of interruption which are not covered by the policy, e.g. your client may (i) have hired staff to work at the B&B, but opening is delayed due to a claim and staff wages are due or (ii) have more than one B&B and staff or equipment could be sent to another property but this will incur costs or (iii) have hired equipment to carry out the relevant works, but this cannot be used until the claim is resolved. Costs such as these can be considered under this endorsement.

Conclusion Whilst our policies cover a wide range of losses and legal fees are paid in addition to the policy amount, it is always worth considering if there are more specific losses that your client (or any tenant of the property) may be concerned about. We offer a number of endorsements which ensure that your client can obtain the exact cover they require and that any claim has minimal impact. We are always happy to discuss and consider any additional requirements your clients may have bearing in mind their proposed use of the property.

It is always worth considering if there are more specific losses that your client may be concerned about 17

Leading Title Insurance

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Call: +44 (0)207 160 8218 Email: online@firsttitle.co.uk Visit: www.firsttitleresidential.co.uk First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603. Registered o ice: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU

FIRST COMMENT

Product Case Study:

Judicial review Background

Solution

Our insured wished to develop upon land that it owned (an area of unused and open space comprised of overgrown grass and scrub with a wooded copse) and an application for outline planning consent had been submitted for the redevelopment of the land as a large residential housing scheme.

Following a full analysis First Title was able to become comfortable with the risk and provided a policy to our insured ensuring that they would be indemnified in the event that the planning consent was quashed by an Order citing either of the following:

The application was complicated and had been submitted several times to the planning committee during which a number of technical and procedural issues had been raised. To further complicate matters, the application had a generated a significant response from the local community.

Challenge Our insured was concerned that if consent was granted, a third-party challenge by way of a judicial review could present a number of scenarios that would potentially delay or threaten the development. These included preventing access to the land in order to commence works, an injunction which ordered the cessation of works, or the reversal of the planning decision. Solicitors acting on behalf of our insured approached us to consider offering Judicial Review cover.

i. an application for judicial review under Part 54 of the Civil Procedure Rules instigated within a period of six months of the date of grant of the Planning Permission or Policy Date (whichever is the later). ii. an application for statutory review instigated under section 288 of the Town & Country Planning Act 1990 within a period of six months of the date of grant of the Planning Permission or Policy Date (whichever is the later).

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To find out more about our products and services email info@firsttitle.co.uk or call +44 (0)20 7160 8100

www.firsttitle.co.uk

First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603.

Registered office: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU.