Who gets to choose the attorney?
“I’m buying my first property. I’m quite nervous about everything and a friend of mine who is a conveyancer said she would help me with the transaction. However the seller is refusing and insisting that his attorneys must do the transfer. If I am the one paying the transfer fees, surely I should be able to nominate the attorney to do the transfer?”
As a rule of thumb our common law determines that a seller is the party entitled to nominate who the transferring attorney must be, given that the seller carries more risk than the purchaser. That said, nothing prohibits parties from agreeing that the purchaser can nominate the transferring attorney, although often in practice, the seller refuses to agree to such a condition and the purchaser then concedes for want of having the property.
Generally, it could be said that it makes more sense for the seller to nominate the transferring attorney as the purchaser is required to raise the purchase price, cover the transfer fees, meet suspensive conditions such as financing etc. and the seller would generally feel more protected by his attorney managing these important elements and ensure a speedy transaction and receipt of the purchase price. The transferring attorney has to ensure that the purchase price is secured and available and a purchaser’s attorney may be persuaded to rely upon assurances of his client that the money is available, with dire consequences for both purchaser and attorney, should this prove to be incorrect. In short, it is generally seen that the seller as the owner of the property to be transferred stands to lose more and therefore has a stronger claim to the appointment of the conveyancer.
Regardless of who appoints the conveyancer, the conveyancer owes a duty of care to both parties and must represent both parties fairly, unless a dispute arises in which case the transferring attorney will be allowed to act on behalf of the party who nominated him. It remains open for parties to negotiate the appointment of the transferring attorney and include a clause to such effect in the contract of sale. Good grounds may exist which supports the purchaser being entitled to appoint the transferring attorney.
Author Jannie Fourie, Agrisell