March 15, 2009

... and then granny loses her house!

A canonical question in cryptography was about how much money you could put over a digital signature, and a proposed attack would often end, "and then Granny loses her house!" It might be seen as a sort of reminder that the crypto only went so far, and needed to be backed by institutional support for a lot of things.

And now comes Darren with news that Granny is losing her house, proverbially at least. In a somewhat imprecise article (written by a lawyer?) in the Times:

... The ingenuity of the heists carried out ranges from “selling” property they do not own to “buying” property at inflated valuations and making off with the difference.

Critical to many of these scams is the use of stolen identities. According to many solicitors specialising in the field, the key context for the problem was the dash into deregulation and e-commerce earlier this decade.

“There was a view throughout the profession that the abolition of documents of title and reliance upon electronic records would contribute to fraud. And so it has proved,” Samson says. “All this information is open to view through the internet so a fraudster can see exactly who owns a property, assume his or her identity and then sell it.”

While this may sound absurd for owner-occupied homes, it is all too easy, for example, with vacant properties. “What’s more the rightful owner won’t even know that it has happened,” he adds.

So the basic fraud appears to be: find a property that is not cared for by its owner. Assume the owner's identity. Sell it. Or,

To put the hat on what seems a complete botch-up by lawmakers and regulators, the effect of the Land Registration Act 2002 was that the fraudulent purchasers are given a legal title to their “purchase”. “If the fraudster succeeds in having title registered in his name he can mortgage the property,” Samson says. “The true owner may be able to have the transfer to the fraudster reversed by rectification but he will still take the property subject to the mortgage.”

buy it! Now, within that article, there is no shortage of soliciters saying "we told you so!" But the real systemic causes of this fraud will need more digging. We can guess what the first cause is: identify theft. That is, high levels of dependency on the fictitious notion of identity as a protector of security. Yes, that will always get you, and it will likely take another decade before the British populace lose their current faith in identity.

The second cause however is more subtle. As pointed out by Eliana Morandi in a 2007 article, "The role of the notary in real estate conveyancing," problems like that do not happen in continental Europe (see _Digital Evidence and Electronic Signature Law Review," 2007). What's the difference? Whereas the English common law system requires each party to have independent representation, the continental system requires one party, the notary to secure the entire deed for both the buyer and seller. And take the full responsibility, so issues such as this are solved easily:

In cases where, for example, a lender whose mortgage is being paid off has no lawyer, the conveyancer may face claims for having not fully observed the Land Registry’s practice guide. And instead of the Land Registry paying compensation, it will look to the solicitors to reimburse the victims.

Warren Gordon, of Olswang, who sits on the Law Society’s conveyancing and land law committee, protests that it is unrealistic to expect solicitors to do a comprehensive check on someone who is not their client. “It’s unfair to put all the risk on the solicitor, including asking him or her to sign off on the identity of someone he or she does not act for,” he says.

Meanwhile, Paul Marsh, president of the Law Society, points the finger instead at the bankers who are providing fraudsters with the funds to perpetrate their dodgy deals. “At the top end we see vast bonuses being paid to bankers at board level for what turn out to be disastrous investments, while at the grass roots local bankers are under pressure to make loans — to sell money — without even the most basic procedures in place to prevent fraud,” he says. “The banks are refusing to take responsibility for this because they know that they can pin it on the solicitors.”

The bottom line of course is which system is more efficient in the long run. The European Notary may charge more money for the perfect transaction. If the English solicitors can undercut that price, and reduce the fraud such that the result is still better, it is a good deal. Which is it? The abstract to Morandi's article gives a clue:

The role of the notary in real estate conveyancing

Eliana Morandi sets out the role of the civil law notary in the context of real estate conveyancing, illustrating how more effective and less costly it is when undertaken by civil law notaries.

(Unfortunately my copy has conveyed itself into hiding.) If fraud rises in Britain, we will need changes. Now, we've seen with the rise of identity fraud in the USA that there has been zero incentive for the players to change the way identity is used, so we can predict that the Brits will not change the registry practice. Also, the likelihood of the soliciters giving up their lucrative representational practice is pretty low.

However the complicated notarial versus solicitorial versus identity versus registry war pans out in the long run, it seems that solicitors are going to have to bear increased responsibility to check the identity of their counterparty. Perhaps they should pop into the Identity and Privacy forum, 14th 15th May over in London's Charing Cross Hotel? Probably a bargain if it saves them from granny's wrath.

Posted by iang at March 15, 2009 05:58 AM | TrackBack

Interesting to read what iang made of my note. Whne I read the article it made me think about absolute ownership vs relative ownership; nothwithstanding what Lord Bingham says between gritted teath in JA Pye v Graham, I still think that relative ownership is a better system.

For JA Pye see,

Posted by: darren at March 15, 2009 12:48 PM

An easier approach might be to track down the money, and recover it.

Of course the fraudster may have bought things. Then, the money should be recovered from the sellers, leaving them the poorer, for having dealt with the fraudster. Why is this so hard to accept? If the situation were reversed, and the fraudster had sold stolen goods to the dealers, the victims recover their cars, jewels, etc.

And of course the fraudster may have walked out the door of a bank with cash, somewhere. Thus, we should consider the pros and cons of doing away with cash-- if you want a lawful world, that would be an option.

And of course the fraudster may have transferred the money fifty times, and the whole result being delay and difficulty tracking the funds. THIS is something that the banksters can fix. They have no problem fixing things they want to fix. This happens to be something they don't want to fix. I would speculate that recent cases of US and UK governments forcing information out of Swiss banks is more about tracing stolen loot from the financial meltdown, than chasing tax evasion.

So, we could consider an end to cash.

Posted by: Todd at March 15, 2009 04:28 PM

Hi Todd

You're describing a mixture of following and tracing property; the difficulty of undergoing this process depends upon the circumstances of each case. Further, after you've done this process, next comes the question of how to get back. Or, whether or not it is possible to get it back.

None of the above are trivial exercises.


Posted by: gyg3s at March 17, 2009 03:28 PM
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