In the sale of a property, who has the right to choose the conveyancer?
This apparently simple matter is more complicated than it might appear, says Tony Clarke, MD of Rawson Properties.
There are, in fact, three options open to the seller and the buyer.
'In South Africa, traditionally the seller is allowed to choose the conveyancer, who will then represent him in the deal, even though the buyer is paying for the conveyancers services,' said Clarke.
This arrangement, he added, is logical because the seller is far more at risk in this sort of transaction than the buyer.
However, in some cases, the buyer can ask that an attorney of his choice be appointed, usually on the grounds that he is offering a reduced fee or has a close connection with the purchaser.
In these cases, said Clarke, the conveyancer is still obliged to operate on behalf of the seller.
The third possibility is that the purchaser can not only appoint the conveyancer but also have him operating on his behalf.
'This is not something that we at Rawson Properties recommend,' said Clarke, 'because, as indicated, the seller is the one holding the asset and is, therefore, far more at risk than the buyer, especially on such matters as delayed transfer'
If the seller does not have an attorney or chooses not to employ the attorney with whom he usually works, the agent is allowed to recommend two or three attorneys, but, said Clarke, he is very definitely not allowed to recommend only one. Whoever he does recommend, he added, should be a specialist in this branch of law.
Clarke pointed out, too, that there are two legal processes in a property sale: the first is the drawing up of the transfer and the registration of the property into the buyers name. Following this, in a second process, the bond on the property has to be registered and lodged with the Deeds Office.
In practice, said Clarke, the same conveyancer usually handles both operations, but it is quite possible for separate legal firms to be involved in the first and second phases. (The registration of the bond, Clarke pointed out, will ensure that the property cannot be sold without the outstanding debt being paid - a very necessary precaution.)
'Summing up, therefore,' said Clarke, 'the choice of a conveyancer can be critical, particularly if the seller, as is usually the case, wants to avoid delays and be paid as soon as possible. Delayed payments have, throughout the history of the property industry, cost sellers large sums of money and it is very definitely worthwhile having a conveyancer who is fully cognisant of the details required and the pitfalls of this type of transaction'
