Among those selling and buying property, there is sometimes a perception that the conveyancer is an extra who has cornered a simple, largely standardised but lucrative legal process for himself and his colleagues when in fact it could be handled by any intelligent clerk.
We addressed this perception in a previous blog post where we answered the question, “Why do I need a conveyancer for a property transaction?”. You can read that post here. In this post, we want to engage with that perception even further.
From the outset, we will say that this perception is not valid: a conveyancer is a key figure in any property transaction and, in fact, the only person entitled by law to handle such work. His specialist knowledge of property law enables him to ensure that the seller avoids the pitfalls that lie in wait for the uninformed and his input can save clients money and time. Furthermore, there are a wide range of legal issues that arise in the conveyancing process, including corporate law, family law and the law relating to the administration of deceased estates.
The idea that conveyancing is a less challenging, less complicated sector of the law is not justified.
Problems when not using a qualified conveyancer
One of the unfortunate effects of this view is that all too often a seller will pass a conveyancing task on to a lawyer, perhaps a family member, who is not a qualified conveyancer, who then farms out the work to a colleague, sometimes doing a portion of it himself.
This practice has been a major cause of the many delays which frequently overtake the property transfer process.
Conveyancers have to write and pass a separate professional examination set by the Law Society. Their primary role is to protect the seller while remaining aware of and honouring the buyer’s rights as set out in the deed of sale.
Why do I need a conveyancer? The conveyancer’s responsibilities
The conveyancer’s responsibilities will include ensuring that:
The seller is not at risk because the guarantees are in place and the deposit and other payments come through by the stipulated dates;
The transfer is registered in the purchaser’s name and the document complies with the (many) Deeds Office rulings;
The purchaser’s bond (if he is using one) has been approved and is in accordance with the conditions stipulated in the deed of sale;
The seller’s bond on his existing house is cancelled timeously, also bearing in mind the 90 days notice required by the banks;
Guiding the parties through the transaction e.g. Any money needed via the access facility on a bond about to be cancelled (e.g. to pay the transfer costs on a new property) should be withdrawn before the bank is notified to cancel the bond, as once the notice is given to the bank, the facility tends to be frozen
All municipal rates on the property are paid up and the Rates Clearance Certificate has been received. Without this certificate a deed cannot be registered;
Transfer duties are paid to SARS and a certificate acknowledging this has been received. Again the transfer cannot be registered until this has taken place.
Why do I need a conveyancer? Further reasons
Many things can hold up or even nullify a transfer process but an experienced conveyancer will prevent these taking place. He will also detect whether the buyer or any other party is trying to avoid or frustrate an obligation.
Where disagreements do arise, e.g. over a defect in the property or delays in making certain payments or furnishing guarantees, a good conveyancer, often working with the estate agent, can often mediate a solution. This is especially useful when the sums involved are too small to justify litigation and in any event to prevent costly delays. It is, in fact, a characteristic of a good legal practitioner that they are skilled at mediation.
Although cutting of fees by conveyancers was prevalent in the 2007 property boom days, it is far less evident these days, and in practice it should be avoided if the seller is looking for a truly professional service.
One has to bear in mind that very often the property is the client’s major and possibly only real asset and exceptional vigilance and care have to be taken to protect it. Most people would prefer that this is attended to by a skilled professional who is accountable to a professional body such as the Law Society.
Images courtesy of Stuart Miles and cuteimage at freedigitalphotos.net.