Sellers take note: You should choose the Conveyancer for your Transfer.
Why is it that the seller gets to choose which conveyancer attends to the transfer of immovable property, but the buyer has to pay that conveyancer?
We have a strange system in South Africa where the seller of immovable property has the right to nominate the conveyancer to attend to the transfer of that property. This is perfectly logical because the conveyancer is acting as the seller’s agent, to assist the seller to comply with the seller’s obligation to deliver the property to the buyer.
The problem comes in where the buyer is given the obligation to pay that conveyancer. In most cases, the buyer and the conveyancer have never met and the buyer often has a relationship with another conveyancer who is prepared to do the transfer for a lower fee. This causes tension at the beginning of an already stressful process.
In an attempt to resolve the tension, a buyer often either asks the seller to let the buyer’s conveyancer attend to the transfer, or the buyer asks the conveyancers to match the discount offered by the buyer’s conveyancer. The former situation is extremely dangerous for the seller. If there is a problem in the transfer (for example a failure by the buyer to pay the deposit), the seller will have to hope that the buyer’s conveyancer will act in the seller’s best interests, which often doesn’t happen. The latter situation places the conveyancers in a difficult position, where they need to “horse trade” or try to undercut their colleague to get the business, which is unprofessional and damaging to the legal profession.
In our view, the best solution in the current situation (and barring any challenge to current practices, which is perhaps overdue) is the following:
1. The seller must choose the conveyancer (this accords with the principle of agency in our law);
2. The conveyancer must do the job properly and for a fair fee (recommended fee guidelines are in place);
3. Buyers should be free to negotiate a discount but only closer to the registration of transfer once the parties are able to assess how everyone has performed during the transfer process.
A transfer costs calculator is available on our website should you wish to know what the recommended fees are for a particular transfer. Should you require any further advice on the transfer process, please contact Marchelle Botha.