Why should your conveyancer attend to the transfer of your property?

31 March 2016 ,  Ed Harris 750
I’ve sold my house and would have given the transfer to my own attorney but the buyer asked me whether his attorney could do it, and I agreed because after all, it’s just a transfer isn’t it? 

Only conveyancers may attend to the transfer of immovable property and not all attorneys are conveyancers. This requires additional studying, exams and qualification by an attorney (so all conveyancers are always also attorneys).

The prevailing practice and rule of thumb is that the seller enjoys the prerogative to choose the conveyancer who is going to attend to the transfer of the property and registration of the transfer in the Deeds Office.

At first this may seem rather strange, considering that the buyer pays the transfer costs. If the seller does not have a particular conveyancer in mind, then the estate agent should provide the seller with a choice of attorneys and only if the seller is still uncertain, the agent may recommend one.  

Unlike some countries in Europe and the UK it is unnecessary for the buyer to have his own attorney because all attorneys are officers of the court and bound to act in an ethical manner towards both parties. 

There are two basic reasons why you, as seller, should choose your attorney and they are as follows:

1. So that your attorney controls the finances.
2. In the case of a dispute, your attorney will act for you.

Not many people realise how important it is for their attorney to control the finances.  Such control is necessary because there is invariably a time limit placed on payment(s) by the buyer, whether it be in cash, partially in cash and partially on a bond or completely on a bond.  Your attorney will ensure that conditions are met and time limits are adhered to, failing which the appropriate action will be taken.  Should the buyer’s attorney on the other hand control payment, there is every likelihood that the attorney will be much more lax about enforcing performance.  After all, they enjoy an established attorney and client relationship which you as seller, do not.  This may result in delay or non-performance which can be very detrimental to you.

It is not well known that in the case of a dispute between the buyer and the seller then the attorney will act for the seller. Accordingly, the buyers attorney will act for him, with all the inside information at his disposal, and you will have to look for another attorney.   Further,  all monies will be held in that attorneys trust account and if there is a “rouwkoop” (forfeiture) clause in your favour, you will face an uphill and expensive battle to recover it.

Do not be fooled by the idea that because the buyer’s attorney may also be dealing with the transfer of the buyer’s own property it will be easier for him to deal with both transactions.  Any old and new bonds over both properties will probably be dealt with by other attorneys anyway. 

As to costs, you do not save any costs and nor will it cost you any more because the transferee bears the costs and; what happens if the buyer’s transaction fails?  

Further, all attorneys except city practitioners need correspondents to lodge transfers at the seat of the Deeds Registry  and if there is more than one attorney, they simply liaise with each other at no extra cost to you or the buyer.

Because they are not adversarial, many people do not regard property transfers as true legal matters, and accordingly mistakenly believe that it does not matter who does the job as long as it is done. This is only true if no problem arises but unfortunately they can and do!

As appears from the above however it is important to instruct your attorney to attend to any transfer of a property you are involved in and to ensure you obtain specialised advice from him or her before putting pen to paper on any offer to purchase (as buyer or seller!)
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