You may have heard the tall tales about Arthur Ferguson, the Scottish alleged con artist famous for “selling” English national monuments to American tourists in the 1920s.  If the stories are to be believed, armed only with his wits and acting prowess, he posed as an agent of the British Government and sold Nelson’s column for £6,000 and took down payments of £1,000 against Big Ben and £2,000 against Buckingham Palace.  We will probably never know whether the stories about Arthur are real or fictional.  But what we do know is that property fraud is unfortunately very real and alive and kicking in the UK today.

But how did fiction become fact? 

Since 1990, Land Registry records have been open to the public.  This means anyone can, for a nominal fee, obtain title information for any property in England Wales which has been registered.  The move towards electronic conveyancing also means that property owners do not need their original title deeds to complete their transactions and solicitors do not need to send original documents to the Land Registry any more.  Combine this with the decline in face to face meetings, and the advent of email and conditions have been ripe for fraudsters to cash in.

As in Arthur’s day, property fraud will typically involve impersonation.  The fraudster may steal an identity and pretend to be the owner of the property.  They may also pretend to be a solicitor acting for the owner of the property in a transaction.  Sometimes they will even pretend to be your solicitor.  And they do this so well that many people, including other professionals can be taken in.

The case of Schubert Murphy v Law Society [2017] is a good example of how convincing the fraudsters can be.  In this matter the unsuspecting buyer, Mr Chrisofi lost over £700,000 when criminals set up a fake law firm and managed to get it registered with the Law Society on their “Find a Solicitor” website.  Mr Christofi’s solicitors checked the website and were thereby persuaded of the veracity of the bogus firm.  By the time the fraud was uncovered the firm had ceased trading and, needless to say, the money had gone.  Litigation between Mr Christofi’s firm’s insurers and the Law Society is ongoing, to determine whether the Law Society owes a duty of care to conveyancers using their Find a Solicitor website.  With the Court of Appeal having refused to dismiss the claim against the Law Society last year many firms like ours will be waiting with interest to hear the outcome.

What to watch out for

1. Fraudulent transactions

The fraudster will pretend to own a property – usually something that is vacant and easy to access like a plot of development land.  They may appear genuine enough to convince and retain estate agents.  The unsuspecting buyer will view the property, make its offer and the purchase will proceed in the usual way.  Unless the fraud can be uncovered as the transaction progresses the first anyone will know is when the actual owner arrives on the scene to claim ownership.  By this time the fraudster and the sale proceeds may be long gone.

And, as a variation on the theme, fraudsters have carried out similar scams by applying for mortgages for properties they do not own.  This is what happened in the case of Swift 1st Ltd v Chief Land Registrar [2014], which came to court in 2014 but related to a transaction that took place in 2006.  Swift provided a loan to the fraudster, who signed a mortgage for the property it did not own.  The mortgage was completed and registered at the Land Registry and the fraud only came to light when the mortgage payments were not made, and Swift tried to enforce their security.  In this case Swift were fortunate in that they were able to rely on the Land Registry indemnity to cover the losses they suffered when the title was rectified to remove their mortgage.  The case is notable however as there were also some serious shortcomings in the way that Swift had dealt with the transaction (they didn’t appoint lawyers, the transaction was carried out remotely without any face to face contact and the property involved was not even inspected on their behalf) which would be unthinkable under current conveyancing practices and which undoubtedly made the fraudster’s job in that case much easier.

1. Diverting transaction proceeds or “Friday afternoon fraud”

The other type of scam that has been hitting the headlines over the past couple of years involves tampering with genuine transactions.  By intercepting emails, the fraudster can issue requests for transaction funds, but with their bank details appearing in place of those of the real solicitor.  The fact that monies have been diverted only comes to light some days later when the real solicitor chases up the money and the unsuspecting buyer realises that something is amiss.

Fraudsters will also try to intercept emails between solicitors and divert completion monies, often targeting the residential sector at their busiest time on a Friday afternoon when chains of completions are being rushed through.

And sadly, the consequences can be devastating with transactions stalled, or lost altogether and with little chance of recovering the money once the fraudsters move it to overseas accounts.

So, what can you do protect against Arthur and his fraudster friends?

The good news is that there is plenty you can do which should help to stop the fraudsters in their tracks.

• Keep your identity documents safe, shred correspondence with your address on and ensure you update your address when you move and use mail forwarding services – both for home and business moves. This will help to ensure the person they impersonate is not you or someone at your business.

• Make sure your property is registered. Registration comes with a government backed guarantee and compensation may be payable if you are the innocent victim of a fraud.

• Make sure your details at the Land Registry are up to date. This way the Land Registry can get in touch if they have any concerns about activity affecting your property.  You may lodge up to three addresses with the Land Registry, and this can include an email address – which can be invaluable for anyone who spends time away from their main address.

• Sign up for the Land Registry Property Alert You will then be notified if certain activities occur on the Property (e.g. applications to register mortgages).  This will give you a chance to raise the alarm and get the Land Registry’s dedicated counter-fraud team on the case.

• Certain types of high risk properties can have a restriction placed on the register. This will prevent anything being registered without a certificate from a solicitor verifying that the application has been made by you.

• Never transact for a property you haven’t seen.

• Only use secure internet connections and keep your passwords safe and strong.

• Never accept or provide bank details solely by email. Drop them off with your solicitor at the same time as you return the transaction documents or verify them over the telephone with someone you know at the firm.

• If in doubt when sending money to a new account, send a nominal sum and check with someone that you know that it has been safely received before sending the rest.

• Remember it is unusual for anyone to change bank details part way through a transaction, so if you are notified of a change speak to someone you know to check this.

• And if you have any other concerns or doubts make sure you always speak to someone you know at the firm acting for you.

Rest assured that we property professionals are always vigilant and working hard to protect you against fraud.

• This is why we, estate agents and banks, always obtain and check ID documents for all our clients.

• We also routinely check the details of lawyers on the other side of transactions (including online checks that go further than the Law Society “Find a Solicitor” website which we use when we encounter unfamiliar firms) to try to make sure we are dealing with genuine lawyers and not imposters.

• We will always check bank details provided by email and we publicise the fact that we will not change our bank details on all emails we send.

• We are constantly watching out for anything that seems out of the ordinary and we trust you’ll understand and bear with us whenever we suggest that something should be checked out before your transaction proceeds.

Unfortunately, it will always be difficult to eradicate fraud.  The lengths fraudsters are prepared to go to mean they will work hard to try to find a way around anything we do to counter them.  But by taking precautions hopefully we can all work to minimise the risks and try to consign Arthur and his fraudster legacy to the past.

by Sarah Bonwick
Partner