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Advice for sellers: how to choose your conveyancing attorney

Category Helpful Hints

The law is trite that the seller has the absolute prerogative to appoint the conveyancer when he or she sells an immovable property, unless the parties agree otherwise in the written agreement of sale.

Only a conveyancer may be given a power of attorney by the seller of immovable property to execute deeds before the registrar on the owner’s behalf, and is therefore representing the seller and not the purchaser in that function.

This is according to Eberhard Kruger, Director at Van Zyl Kruger Attorneys, who says the questions this begs are:

- How important is this prerogative?

- Is one conveyancer not just as good as another?

- Since it is the purchaser that normally pays the conveyancing fee, should the seller not simply relinquish his or her prerogative and allow the purchaser to nominate the conveyancer?

- Would the estate agent handling the sale of the property not know which conveyancing firm will be the best?

“These questions can only be answered once one has established who and what a conveyancer really is, and what his or her role in the transfer process entails and the importance thereof to the seller,” says Kruger.

He says a conveyancer is an attorney who is further qualified and enrolled on application in the High Court, and subsequent to such enrolment may then commence to practise as a conveyancer relating to matters pertaining to real estate and the rights thereto.

Only a conveyancer may prepare and sign or execute certain deeds and documents to be registered or lodged in the deeds registry.

Only a conveyancer may be given a power of attorney by the seller of immovable property to execute deeds before the registrar on the owner’s behalf, and is therefore representing the seller and not the purchaser in that function.

The conveyancer who signs the prescribed certificate on a deed or document accepts, by virtue of such signature, the responsibility to the full extent as prescribed by regulations of the Deeds Registration Act for the accuracy of those facts mentioned in such deed or document, or which are relevant in connection with the registration or filing thereof.

“It is obvious that the conveyancer represents the best interests of the seller, and should therefore be appointed by the seller,” says Kruger.

The conveyancer who signs the prescribed certificate on a deed or document accepts, by virtue of such signature, the responsibility to the full extent as prescribed by regulations of the Deeds Registration Act.

“It is imperative that this special relationship between the seller and the conveyancer should be acknowledged when choosing a conveyancer - the seller’s choice should not be diluted by other relationships or interests which may not necessarily always be in the best interest of the seller.”

The conveyancing paralegal or assistant, who will on a regular basis be in contact with the seller, supports the conveyancer with the conveyancing process. He or she occupies a specialised position and works independently within the framework of the provisions of the Deeds Registries Act and conveyancing practice, using their own initiative and skills, especially where they have the required experience.

They always work under the direct supervision of the conveyancer, who has the required legal knowledge, and whom guides them where necessary. They are the right arm of the conveyancer, assisting and enabling him or her to concentrate on specialised matters and consultations, and is normally the default link between the seller and the purchaser, as well the liaison between bond and bond cancellation attorneys and the various local and other authorities or institutions that have input in the process.

“They are the conductor, directing all the relevant parties in the symphony of the successful registration procedure, while continuously projecting an efficient and professional image on behalf of her firm,” says Kruger.

Should the seller not be acquainted with a conveyancer, he says it is advisable to enquire from friends or colleagues who recently sold a property to suggest a firm where both the conveyancer and the conveyancing paralegal provided exceptional service and support throughout the entire process, and continually addressed any problems that might have arisen, professionally and competently, as well as kept within timelines, while keeping the parties fully informed of how the process was progressing.

“Most of us have heard crude remarks such as, ‘What do you call a thousand lawyers at the bottom of the ocean? A good start!’,” says Kruger.

“Hollywood contributed vastly to this general perception of lawyers, as the professional with the skill and training required to shield his or her client against the consequences of that client’s wrong choices and to enable the client to avoid reaping what the client has sown, a victor for the guilty, a crusader for the ‘wrongfully accused’ always playing to the pavilion of potential clients.”

“A conveyancer should be able to honestly counsel the seller upon request on the legal consequences of any proposed course of conduct in order to make a good faith effort to determine the application and scope of the applicable legislation and common law,” says Kruger.

Kruger says Hollywood has not yet discovered the conveyancer, and therefore conveyancers are slightly shielded from the brunt of the general public’s perceptions, of a lawyer as a shark in an expensive suite, but in truth, the majority of claims against lawyers are resultant from and relating to the transfer of immovable property.

“Conveyancers, however, navigate an ocean where the sharks walk on two legs and the bait is often ensnared as result of their own decisions, driven by fear and greed, or perhaps the need to satisfy the requirements of those who ensure that they receive a steady number of instructions and sometimes by shear ignorance or lack of experience,” says Kruger.

“The conveyancer is required to charter a course based on the balance between the client’s right to drive a hard bargain and the morals of the community, that holds that the exploitation of another person’s financial emergency is akin to undue influence, and would not fear to render a contract void due to the absence of the required consent between parties. A balance between right and wrong, between ‘can’ and ‘may not’.”

Kruger says the seller should strive to appoint a conveyancer that, as a professional lawyer, practices within the constraints and boundaries of the law, governed by the rules of professional conduct and practice as prescribed by the Law Society, and who is not subject to influences that do not have the client’s best interests at heart.

“A conveyancer should be able to honestly counsel the seller upon request on the legal consequences of any proposed course of conduct in order to make a good faith effort to determine the application and scope of the applicable legislation and common law,” he says.

A conveyancer represents the seller, and may only take such action on behalf of the seller as he or she is impliedly authorised to, always abiding by the client’s decisions concerning the objectives of the representation and the means by which they are to be pursued.      

Kruger says the law is an ever-developing and growing creature, fed and fuelled by the everlasting quest to ascertain equity between men and goodwill to all. The law determines the “can” and the “cannot”, and those who disrespect it does so at their own peril.

“From the above it should be obvious that having the prerogative to appoint the conveyancer is an important arrow in the seller’s quiver, and should be exercised with due regard to the above. It will be at your own peril to relinquish such benefit,” says Kruger.

“Thus, appoint a conveyancer that will not only deliver a good and speedy service, but in particular will be hell-bent on protecting your rights as the seller. Your property is worth it.”

Author: Eberhard Kruger, Director at Van Zyl Kruger Attorneys

Submitted 22 Jun 17 / Views 462