"I’ve sold my house and would have given the transfer to you, but the buyer asked me whether his attorney could do it, to which I agreed because after all, it’s just a transfer”. How often have attorneys heard this statement?

Only conveyancers may attend to the transfer of fixed property and not all attorneys are conveyancers, which requires an extra qualification. All conveyancers are attorneys, however.

The rule is that the seller has the prerogative to choose the transferring attorney which may seem rather strange, considering that the buyer pays the transfer costs. If the seller does not have an attorney, 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. In the case of a dispute however, the transferring attorney must go with the transferor.

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

1. So that your attorney controls the finances.
2. So that your attorney ensures that all conditions are timeously met.
3. 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 by the buyer, whether it be in cash, partially in cash and partially with a bond or completely with 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 laxer about enforcing performance. After all, they enjoy an attorney and client relationship with the buyer, which you as seller, do not. This may result in delay or non-performance which can be very detrimental to you.

Should the matter end up in a dispute, the buyers attorney will act for him, with all the inside information at his disposal, and you will have to look for another attorney. Furthermore, all monies will be held in that attorney’s trust account and if there is a “rouwkoop” (forfeiture) clause in your favour, you will have very little chance of recovering it.

Do not be fooled in the case of a “double” transaction 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 more because the transferee bears the costs. 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; accordingly, it does not matter who does the job as long as it is done! This is only true if no problem arises and believe you me, they often do! On a personal note, if you have your own attorney, you will usually have a special relationship with him and if you do not give him the transfer, you will damage that relationship, besides depriving the attorney of a substantial fee, which is after all, his bread and butter. Because of the trust placed in attorneys by their clients, they have a special obligation to protect their client’s interests and are required to help them through thick and thin. Further, because the purchaser pays the costs, it is not going to cost you anything to refer the transaction to your own attorney.