As purchasers must pay the conveyancer’s fees, is it not fair that they should appoint the conveyancer to transfer the property as this calls for the navigation of a complex legal process to ensure a smooth transfer of ownership into their name/s?
The simple answer is NO!
In South Africa, the seller of a property traditionally has the right to nominate the conveyancer (even though the buyer usually pays the conveyancing fees). Sellers bear the primary risk in the transaction and are therefore responsible for ensuring a valid and timely transfer of ownership to their buyers.
A conveyancer who is appointed by buyers (although obliged to act professionally towards both parties) may not be as focused on protecting the seller’s financial interests as their own attorneys might be. Definitely a risk worth avoiding.
We also need to understand what conveyancing entails?
Conveyancing is the legal process by which the lawful ownership of an immovable property is obtained. Once sold, a new deed of transfer is drawn up by a conveyancer/transferring attorney who gets all the legal paperwork in order to be able to lodge at the Deeds Office and thus oversees the whole transferring process.
Importantly, by preparing all the necessary documents in order to ensure compliance with legal requirements and managing the transfer of funds, i.e. the full purchase price on behalf of the seller, pay the costs involved on behalf of the parties and reconciling all the relevant accounts, it is clearly an important process whereby the seller’s interests need to be protected.
The conveyancer’s duty is therefore to ensure that the sale progresses smoothly and without delay by confirming that the terms and conditions of the sale agreement are complied with and that all required payments are made on time.
This is done by preparation of all the documents for filing at the Deeds Office. The Deeds Office then examines the documents (approximately 10 - 12 business days). The Deeds Office informs the conveyancer once the property is up for registration and the conveyancing attorneys then need to appear at the Deeds Office for Deed registration. Ownership then passes to the buyer.
Experienced conveyancers know how to meet the necessary requirements promptly and will provide regular updates to the parties concerned.
While it is not illegal for the buyer to appoint the conveyancer, it is clear there are good reasons why the seller should appoint and the specific instruction should always be included in the terms of the sale agreement.
