Updated 09/06/2011
GENERAL MEMORANDUM
McLean & Stewart thank you for consulting us in connection with your business. Our intention is to ensure that your business is dealt with as smoothly and efficiently as possible and that you are kept fully advised as to the progress of your business within this firm. Depending on the nature of your business we shall give you appropriate advice but this Memorandum concentrates on a number of aspects and for sake of brevity we bring them together in this Memorandum for your future reference and as a matter of record. Many of the memoranda referred to will not be applicable but nonetheless you may find them of general interest.
You should read everything carefully and if you have any queries you should speak to the partner dealing with your affairs. The following MEMORANDA are attached –
1. General Terms of Business – this sets forth our hourly rates and calculation of fees in the absence of agreement. We will usually however quote fixed fees wherever possible.
2. Law Society of Scotland Incidental Financial Business, Financial Services Terms of Business.
3. Missives.
4. Title.
5. Mortgage.
6. Closing Date.
7. Guarantee.
8. Transfer of Homes.
9. Moving Home.
10. Memorandum.
11. Completion of Wills.
12. Legal Rights.
13. Letting Out Property.
14. Stewart Title Limited And Title Indemnity Insurance
McLean & Stewart
Solicitors, Estate Agents & Financial Advisers.
1. GENERAL TERMS OF BUSINESS - MEMORANDUM
The Partners and Staff of McLean and Stewart thank you for consulting us in connection with your business. This note sets out our Terms of Business and explains some of the reasons why things are done in a particular way.
If you are a new client, please see paragraph IV under “General” on page 2.
Throughout your dealings with us, you should not hesitate to ask for an explanation of any matter upon which you require clarification.
Our intention is to ensure that your business is dealt with as smoothly and efficiently as possible, and that you are kept fully advised as to the progress of your business with this firm.
Yours sincerely
McLean & Stewart
Terms of Business
Instructions
I. As your Agents, we can only act on information and instructions given to us. You should therefore not assume that we have knowledge of any factual matters. You can instruct us either verbally or in writing - this includes correspondence, fax and e-mail. We may however ask you to confirm your instructions in writing if these are given verbally. If there is any change in your instructions, you must notify us immediately. If we are consulted by more than one client on the same business, in absence of any contrary instructions, we shall take instructions from any one client.
II. Your business will be handled by the relevant Partner or Assistant, to whom your instructions should be addressed. He can be contacted during the office opening hours (Monday – Friday 9.00 a.m. – 5 p.m.). If you have any difficulty in making contact, then you should leave a message with his Secretary who will pass it to him for action.
III. In the event of your becoming concerned in any way with the manner in which the work is being carried out, or having a complaint, then you should contact the Partner dealing with your work in the first instance, or his Assistant should the Assistant be carrying out that item of work for you. If your concern or complaint is not resolved, then you should put your concern or complaint in writing to the Senior Partner. We shall do all we can to resolve your concern or complaint. This is subject to your right to lodge any complaint with The Law Society of Scotland or Scottish Legal Commission.
Money Laundering Regulations
To comply with The Money Laundering Regulations 2007, which affect all law firms in Scotland, we are required by Rule 24 of The Solicitors (Scotland) Accounts etc Rules 2001 to carry out Money Laundering checks. A Money Laundering and Risk Assessment form requires to be completed by the Solicitor for each new client, in order to comply with the regulations. For your information, we attach a copy of the form which will be completed by our firm at your initial meeting. Our firm also requires sight of original identity documentation which should be brought with you to your initial meeting, copies of which will be taken and certified for our records. This information requires to be checked and updated each time our firm undertakes further business and for any prolonged ongoing business.
Source of Funds - It is the responsibility of our firm to establish where funds that have been provided to our firm in excess of £5,000 have actually originated from. We understand that funding can come from various sources, such as savings, the realisation of assets, an inheritance or the sale of a property etc and our firm will therefore require supporting documentation, such as bank statements, copy Will etc. This information is required in order to comply with the regulations.
Where funds have been received by a Bank Draft, Building Society counter cheque, or CHAPS Transfer, we will require supporting evidence from the bank or building society regarding the source of funds. Bank drafts and Building Society counter cheques must be accompanied by a letter from the bank or building society to evidence the account from which the funds were drawn.
Third Parties - Should our firm receive funds from a third party not connected with the transactions, our firm will require to carry out a Money Laundering and Risk Assessment check for each third party in order to comply with the regulations. Our firm will also require sight of original identity documentation.
Once a transaction has been completed, our firm will settle any balance of funds directly with our client, and not to any unconnected person or third party in relation to the original transaction. It is not our firms practice to become involved in the unnecessary movement of funds, regardless of the client’s written instructions.
*SAMPLE – FOR INFORMATION ONLY*
MONEY LAUNDERING & RISK ASSESSMENT FORM – to be completed by Solicitor
APPLICANT DETAILSSurname & Title:
Forename(s):
Date of Birth:
National Insurance No:
Occupation:
Existing Client: / YES / NO
Local to Area: / YES / NO (if no, please state locality)
CURRENT ADDRESS (if less than 12 months, please provide previous address)
Name/No & Street:
Town / City:
County:
Postcode:
Tel Number:
SOURCE OF FUNDS (please provide evidence, i.e. bank statements, stockbroker statements, Will etc)
Savings:
Sale of Investments:
Inheritance:
Other (please state):
PARTNER SIGNATURE:
DATE:
PROOF OF IDENTITY (Essential):
*Please obtain 1 proof of photographic ID (passport, driving licence, etc) AND
*Please also obtain 1 proof of address (bank statement, utility bill, council tax notice etc)
LOW RISK: YES / NO
(Existing client known to firm; previous work carried out; source of funds evidenced)
HIGH RISK: YES / NO
(New client; Source of funds not known; one off and /or large transaction; not local; query occupation; third party source of funds)
Charges
I. Unless negotiated and agreed in advance, fees are charged on the basis of time spent on the work, together with an element for responsibility which can vary according to a number of matters, such as urgency, importance of the work to you, amount or value of money or property involved, complexity, difficulty or novelty of the matters, length, and number or importance of documents or papers. We shall deduct our fees from funds on hand prior to settlement. See also Clause 5.
II. Any estimate given will be for a probable fee based on our experience of the general amount of work involved in a typical transaction of the type involved. If the work turns out to be more complex than normal, then our estimate may require to be amended. You will be kept advised of any such changes.
III. Fees, which are not agreed in advance, are potentially subject to independent assessment by the Auditor of Court. This process is known as “Taxation”. You are entitled to require our file to be taxed if you are not happy about the fee charged. In such a case, the file is passed to the Auditor who will fix what he considers to be a fair and reasonable fee in all the circumstances, including those factors outlined above. The Auditor can fix a fee higher or lower than the fee charged. If it is lower, then we will pay the cost of taxation. If, however, he prices a higher fee or confirms the fee as charged, then you will be responsible for that fee as well as the Auditor’s costs.
IV. Along with our fee, we will issue a statement detailing financial dealings on your behalf. This will include outlays which may have been incurred. Where outlays have been incurred, we normally require repayment of these within seven days of receipt by you of a request.
V. We may require you to settle accounts and repay outlays during the course of the transaction. In such a case, interim statements will be issued. Larger outlays may require to be paid to us before they are due to be paid out by us.
VI. Reference is made to the attached explanatory memorandum in respect of fees.
General
I. Our aim is to provide you with a fully professional, friendly and efficient service, but if you are unhappy about any aspect, then please discuss your concerns in the first instance with the person dealing with you. However, if that would cause you difficulty or embarrassment, please speak to any of the Partners, whose names appear on the notepaper.
II. Information provided to us will be dealt with by us in strict confidence, and will only be disclosed to parties authorised by you, or as required by the Law Society of Scotland, or any other authorised body.
III. If we are acting on your behalf in connection with a sale you must note that ultimately the responsibility to pass on a good and marketable title is yours, not ours. Ultimately therefore if after settlement, for example in a transaction inducing First Registration of Title, there should ultimately be a problem with registration of that title with the Land Register of Scotland then, for removal of any doubt, the ultimate responsibility is yours. We shall do all that we can properly and professionally to ensure that there are no difficulties but we cannot give any guarantees.
IV. To comply with the Money Laundering Regulations (MLR) we may require to carry out relevant checks for which a fee will be charged. We cannot guarantee confidentiality nor are we allowed to disclose to you if we are approached by the authorities.
V. Pursuant to the Finance Bill 2004 and ancillary Regulations, if our advice involves tax advice, disclosure of any tax avoidance schemes agreed with you may require to be made to the Inland Revenue.
VI If we are acting on your behalf in the sale or purchase of property you must remember that often settlements are by way of cheques. These take usually a minimum of four working days to clear. If cleared funds are therefore required on a settlement date then you must make the necessary arrangements and we shall liaise with you.
VII Due to restrictions on storage space and practicability, our general practice is to destroy files on a confidential basis within a reasonable period of years of completion of the business on hand. If you have any objection to that please say as otherwise we shall take it that this has your consent.
STAMP DUTY LAND TAX
If your transactions involves Stamp Duty Land Tax we shall endeavour to have you sign the forms concerned personally but if urgency or necessity dictates, then by acceptance of these terms of engagement you agree that we are appointed to sign any necessary forms as your Attornies or authorised signatories.
LIMITED COMPANIES
I. if we are acting on behalf of a Limited Company, then liability for our professional fees and outlays will be joint and several with the Directors as individuals, i.e. both the Limited Company and the Directors shall be liable for payment of such fees and outlays.
FINANCIAL SERVICES
I. Should part of our remit involve Financial Services and Financial Advice you are referred to the attached Financial Services Terms of Business which will apply in addition to the foregoing.
II. Should part of our remit involve mortgage services and mortgage advice, we point out that we are registered with the Mortgage Code Compliance Board and we shall agree separately the relevant level of service which we provide in terms of The Mortgage Code.
III. The money we hold on your behalf in a Client Banking Facility may be protected in whole or part under the Financial Services Compensation Scheme (“FSCS”). Whether you qualify for compensation under the scheme will depend upon the rules of the scheme from time to time. You should ask us for any information you may require to enable you to assess the extent to which your money might be covered by the scheme or not. Unless you advise us in writing that your details are not to be disclosed to the FSCS, we will be deemed to have your consent to disclose to the FSCS such details as the FSCS requires to enable any claim to be pursued. If you expressly withhold your consent, you will require to contact the FSCS direct about any claim you may have.