By Sloan Wilson

January 2019

 

When a property is sold who has the right to appoint the Attorney to attend to the transfer? Firstly, it is important to be aware that not all Attorneys are Conveyancers. Only qualified Conveyancers may prepare Deeds of Transfer and Mortgage Bonds and register these documents in the Deeds Office. Conveyancers are qualified Attorneys who have studied further and obtained the additional qualification of Conveyancer. Some Conveyancers then go on to specialise in Conveyancing and Property Law much the same as a doctor (general practitioner) may go on to specialise in a particular field of medicine.

It is accepted practice for the seller to appoint the Conveyancer. It is occasionally argued that the purchaser should have the right to appoint the Conveyancer as the purchaser pays the transfer costs. Whilst it is correct that the purchaser pays the transfer costs it is equally true that the property being transferred is obviously the seller’s property. The purchaser pays the purchase price to the Conveyancer and I think it is fair that the seller should have the right to appoint his own Attorney to receive the proceeds of the sale of what is very often the sellers largest asset. Furthermore, most of the financial obligations created in the contract must be fulfilled by the purchaser. The purchaser must pay the purchase price, the transfer costs and occupational rental. As a result, it has been my experience as a Conveyancer, that when there is a breach of the obligations created by the contract, the defaulting party is more often than not the purchaser. If the Conveyancer has been appointed by the purchaser an awkward situation can arise if the Purchaser breaches the contract as you then have a situation where the Conveyancer now has to compel his own client (the purchaser) to perform his contractual obligations.

He is obviously obliged to do so but his position is understandably more difficult than that of a Conveyancer who has been appointed by the seller. In addition, if a dispute arises between the seller and the purchaser relating to the sale and the Conveyancer is unable to resolve the dispute, he cannot act against the purchaser if the purchaser is his instructing client. He will then have to refer the seller to another Attorney. The seller then finds himself in a position where the Conveyancer who is attending to the transfer of his property is acting for the purchaser in respect of the dispute. In many instances the Conveyancer will withdraw from the matter to avoid a conflict of interests and the purchaser will then instruct another attorney to act on his behalf. It goes without saying that it can end up being a little messy. Having regard to the above, I think it is preferable for the customary procedure to be followed and for the seller to insist that the deed of sale contains a clause which states that he has the right to appoint the Conveyancer. It is also, in my opinion, important for the seller to appoint an Attorney who is a qualified Conveyancer who practices in this field of law.

(Disclaimer: This article is for information purposes only and do not constitute legal or other professional advice)