When they have seen their dream home in an estate agent’s
and made an offer, most people will then have to sort out a mortgage and find a
solicitor.
This is where you are going to experience some major contact
with the UK anti money laundering regime. We have all become used to having to
produce identification to open bank accounts and it won’t be any surprise that
obtaining a mortgage will involve those sort of checks as well as inquiry into
your sources of income.
But what many people don’t appreciate is that solicitors are
subject to the same sort of stringent anti-money laundering regulations as
banks and building societies.
The major requirements of those regulations for solicitors are
that they know who their clients are and that they do not facilitate money
laundering or other illegality. What that means in practice is that the
solicitor is under a legal obligation to understand what funds are being used
for a transaction, how they are going to be used and where they are coming
from. If a solicitor does not make those enquiries they can face some very
severe penalties, especially if they become involved in a money laundering
activity, even unwittingly.
The sorts of things, in a property transaction, that a
solicitor is required to consider is whether the transaction is “normal” for
that type of client and property. Also, whether the sources of funds can be
explained. In the house buying field, what may get alarm bells ringing, for example,
is someone using a large amount of cash, with no sensible explanation of where
it has come from, to buy a house at a say an unusually low price. If a
solicitor has concerns about a transaction, they are required to report it to
law enforcement authorities without telling their client. That is one of those
unusual situations where solicitor client confidentially does not prevent a
solicitor from discussing their client’s affairs with law enforcement. In this
instance the law requires it.
When you instruct a conveyancing solicitor, they should be
going through some rigorous identity checks first. One of the purposes of those
is to make sure that you are who you say you are and not a criminal
masquerading as someone else to carry out a fraud or conceal criminal
activities. Some solicitors use online ID checks where the client uses an app
to take a picture of themselves and upload passport details etc. Other
solicitors may take a more traditional approach of asking you to bring your Id
documents and proof of address into the office.
In addition to ID checks the solicitor is likely to ask you
questions about where you have secured your funds to buy the house from. In
most instances that will be straightforward because it’s likely to be mortgage
and a deposit from savings. But you may be asked more questions about the
deposit and, for example, for bank statements to show that you have saved up
from income. If someone is giving you the deposit, such as parents, the
solicitor may ask them for their bank statements to show where the money has
come from.
It can feel a little intrusive to have the solicitor asking
you or your parents, detailed questions about where you have got money from and
to prove it. But you need to bear in mind that the solicitor is under a legal
obligation to satisfy themselves about your source of funds and can face heavy
penalties themselves if they do not.
Large cash transactions are always going to be problematic
so if you are going to be using a lot of cash you should expect to get asked
detailed questions about where that has come from. Some solicitors may simply
refuse to undertake a transaction which involves a lot of cash because of the
risks.
It is also worth being aware that solicitors have a legal
obligation not to act as a bank. That means that they can only handle funds as
part of the legal transaction with which they are dealing. They cannot receive
or send out funds in ways that are not connected with that transaction. So, in
practice that means that if, for example, you are selling a house, the
solicitor can receive the sale funds and, on your instructions pay off the
mortgage and send any remaining sale proceeds to you. What they cannot do is
pay off your credit card or send the money to an unconnected third party such
as a family member to pay off a debt that you may have with them. Those
payments would not relate to legal conveyancing transaction and would put the
solicitor at risk of breaching anti money laundering rules by acting as a bank.
All of these requirements may seem irksome or intrusive, but
they are designed to prevent criminals using transactions such as buying and
selling houses, to launder money.
Obviously, most people are not involved in money laundering
and their transactions are perfectly legal. But it is useful to be aware of the
rules and why you are being asked questions, even as an innocent buyer or
seller. The rules apply to everyone. It may be sensible to discuss at an early
stage with your solicitor where you are getting your funds from and any
evidence that they may need about the transaction. You can then have that all
produced well in advance. Difficulties arise if there is a problem with this
sort of thing on or close to completion day as it may hold up completion, even
if you are completely innocent and have nothing to hide. You don’t want to be
scrambling around trying to find bank statements or payslips the day before
completion when you really want to concentrate on the move itself.