A match made in heaven (or not)
THE RISK IN CHOOSING THE WRONG CONVEYANCER / TRANSFERRING ATTORNEY
Avoid costly legal battles, delayed registrations and wasted energy, time and funds by sticking to the following 10 Guidelines:
1. Don't let the Purchaser choose his own Conveyancer
The importance of the Conveyancer is often (sadly) overlooked by the Seller and agreement is often reached on the basis of a Purchaser stating , "I know a friend who is a Conveyancer and who can give me a big discount " or "I've been using Firm XYZ for many years...they do all my legal work...".
Why are both these remarks extremely problematic, risky and to the disadvantage of the Seller? It is not without reason that the Seller has the prerogative to appoint a Conveyancer, unless by agreement of course he elects not to exercise that prerogative: Regardless of who appoints the Conveyancer, the Conveyancer owes a duty of care to both parties and must represent both parties fairly, unless a dispute arises, in which case the transferring attorney will be allowed to act on behalf of the party who nominated him. However, should the Purchaser fail to comply with the deed of sale (e.g. by not paying costs or transfer duty, or by delaying the process, not signing transfer documents etc.), the Conveyancer might be hesitant or avoid putting his own client (the Purchaser) on legal terms or act against him. In this instance the Seller might have to appoint another attorney at his own cost to act against the Purchaser.
2. Is the Conveyancer and the Attorneys' Firm well-known, established and do they have a good reputation?
If in doubt, you can always phone the Legal Practice Council and ask them these questions on Tel 021- 4436700.
3. Is the appointed Attorney an admitted Conveyancer?
To be a Conveyancer, an Attorney needs to pass an additional exam before he/she may act as a Conveyancer. It could be very frustrating to realize only after appointing your attorney, that he/she has merely handed the matter over to another Conveyancer in his firm or to a correspondent conveyancer at another firm to act on his behalf.
4. Is the Conveyancer prepared to assist with the sales transaction prior to the conclusion thereof?
A Conveyancer will often be required to clear up issues on more technical deals. For example, searches on the title deed conditions and conditions lurking behind the pivot deed (commonly found in the Western Cape); searches at the Surveyor General's Office to establish servitudes, boundaries, caveats etc.; searches on the sectional title conditions to ascertain if there are tie conditions or the real right of extension that is critical for a Purchaser to be made aware of (and often gets overlooked).
5. Will the Conveyancer be prepared to assist with post-registration disputes?
Often buyers move in prior to registration, only to raise issues about a leaking roof, structural defects or queries about issues relating to the Certificates of Compliance. The Conveyancer is sometimes required, if the issue cannot be resolved prior to registration, to retain an amount in trust (with the consent of both parties) pending the parties resolving the issue only after registration. Regrettably, not all Conveyancers are equally amenable to assist in sorting out disputes on this basis.
6. Is the Conveyancer based in close proximity to a Deeds Office?
If not, do they travel to the Deeds Office daily themselves and execute deeds and take out notes with Deeds Examiners themselves, or do they leave all of these issues to third parties or correspondent firms? Your appointed conveyancer should indeed be the person who takes responsibility for the effective management of the transfer process in the Deeds Office. It is also important that the conveyancer has a sound reputation at the Deeds Office and that he/she is well-known with the Deeds Office examiners and personnel.
7. Does the firm have more than one Conveyancer and how big is the Conveyancing Department?
The last thing you want, is for the one and only Conveyancer to be ill, and for your deed to be neglected until he/she has recovered (or returned from holiday.)
8. Will that Conveyancer travel to you for signing of documentation?
Often a Seller or Purchaser is reluctant to travel to the Conveyancer's offices during office hours and this can cause delays. Conveyancers who take client service to heart are usually more than happy to meet clients at their office or home to sign documents.
9. Does the Conveyancer have a sound track record for accuracy and filing registrations on time?
Ask the conveyancer for client references to ensure that you get the best possible service.
10. Do not feel pressurized to appoint the Conveyancer on date of signing the Deed of Sale
Often Sellers feel obliged to agree to the request by the Purchaser to appoint his/her Conveyancer, as the Purchaser pays the transfer costs. Fact of the matter is that the biggest expense during the transfer process is usually not the Conveyancing Fees, but the Transfer Duty, which is a legally prescribed tax.
From experience we know that only a small number of transactions are being jeopardized, due to a dispute about the allocation of the Seller's Conveyancer, therefore, stick to the above guidelines and questions when doing the Deed of Sale! Your Agent should inform you about the Seller's prerogative to appoint the Conveyancer.
REMEMBER! The Devil is in the Detail!
Good Luck with your Registration Process.
For more information on conveyancing, please contact Tania van Toorn: firstname.lastname@example.org / 021 976 3180
Article by Pieter de Swardt : Business Manager, Professional Home Stager & Expert Property Consultant at Louw & Coetzee Properties
Contact: email@example.com / 021 976 2730
Author: Louw & Coetzee Properties