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Appointment of the Conveyancer in a Property Sale
In South Africa it is accepted practice that the Seller appoints the conveyancer, despite the fact that the Purchaser is responsible to pay the conveyancing fees. Why is this?
In terms of our common law, the Seller had the right to appoint “an agent” to complete a contract. We have adopted this approach, but the more important reason is that the Seller is at far more risk than the Purchaser: it is the Seller’s property which is being transferred (it remains his property and at his risk until possession passes – which usually is on transfer in the deeds office - unless otherwise stipulated in the Agreement of Sale).
Furthermore, most of the financial obligations in the contract (payment of the purchase price, transfer costs and occupational rental, if applicable) must be fulfilled by the Purchaser.
When there is a breach of the conditions as contained in the Offer to Purchase, more often than not it is the Purchaser who defaults.
If the conveyancer has been appointed by the Purchaser, the conveyancer then finds himself in an awkward position, as he has to compel his own client (the Purchaser) to perform in terms of the agreement. The conveyancer, in these circumstances, has a conflict of interest, and is obliged then to withdraw as the transferring attorney. This often gets expensive and messy, with the result that the transfer can be delayed, to the detriment of both parties.
It is important to note that the conveyancer, whilst representing the Seller, has a duty towards both parties to make sure that the terms and conditions as contained in the Offer to Purchase are fulfilled. If a dispute between the parties arises, the Purchaser always has the right to consult his or her own attorneys.
Team: Southern Staying