Sellers must reserve the right to change lawyers

The primary duty of the conveyancer that handles the transfer of a property is to protect the interests of the seller, which is why it is usual for the seller to nominate the conveyancer, even though it is the buyer who must pay the legal fees.

Occasionally, however, the buyer will argue that, as he is paying the fees, he would like a friend, relation or colleague to handle the transfer – and may even be able to show that this person will offer a reduced fee. And if the seller has no reason to suspect the appointee, he will quite likely accept this arrangement.

So far, so good – but what happens if the buyer then defaults on payment or on some other aspect of the deal? And what can the seller do if it appears that the conveyancing process is being deliberately delayed?

Anton du Plessis, CEO of Vineyard Estates in Cape Town, says that before accepting an alternative nomination, sellers should ask themselves whether a conveyancer that is close to the buyer either for business or personal reasons will be diligent in protecting the seller’s interests.

"And then if they do agree to the buyer’s nominee being appointed as the conveyancer, they must be sure to insert a clause in the sale agreement stipulating that they reserve the right to change conveyancer at any stage of the deal, and that the buyer will be responsible for any and all wasted costs."

It is further advisable, he says, to ensure include a provision that the first conveyancer will without delay hand over to the new conveyancer all documents relating to the sale, as well as all monies and guarantees that are being held.

"The seller may also be at risk where guarantees are made out to pay a specific law firm by a specific date. At the time of signing the sale agreement, therefore, the seller should insert another clause saying that any guarantees issued will be made payable either to the initially nominated conveyancer or to another designated firm that the seller stipulates at the time of signature."

Source:  Property Trader