Conveyancer is key figure in property transactions
BUYERS and sellers of residential property sometimes think the conveyancer is an “extra” who has cornered a simple, largely standardised but lucrative legal process when in fact it could be handled by any intelligent clerk, says Grant Gunston, senior director of Grant Gunston Attorneys.
“This perception is not valid: a conveyancer is a key figure in any property transaction and, in fact, the only person entitled by law to handle such work,” says Gunston.
“His specialist knowledge of property law enables him to ensure that sellers avoid the pitfalls lying in wait for the uninformed, and his input can save clients money and time. Furthermore, a wide range of legal issues arise in the conveyancing process, which require a knowledge of corporate law, family law and the law relating to the administration of deceased estates. The idea that coveyancing is a less challenging, less complicated sector of the law is not justified.”
One of the unfortunate effects of this view, he says, is that all too often a seller will pass a conveyancing task on to a lawyer, perhaps a family member, who is not a qualified conveyancer, who then farms out the work to a colleague.
“This practice has been a major cause of the many delays that frequently occur in the property transfer process,” says Gunston.
“Conveyancers have to write and pass a separate professional examination set by the Law Society. Their primary role is to protect sellers while remaining aware of and honouring the buyer’s rights as set out in the deed of sale.”
The conveyancer’s responsibilities will include ensuring that:
The seller is not at risk. He will see to it that the necessary guarantees are in place and the deposit and other payments come through by the stipulated dates.
The transfer is registered in the buyer’s name and the document complies with the many deeds office rulings.
The buyer’s bond (if he is using one) has been approved and is in accordance with the conditions stipulated in the deed of sale.
The seller’s bond on his existing house is cancelled timeously, that is, giving the 90 days’ notice required by the banks.
Guiding the parties through the t r a n s a c t i o n . Fo r e x a mp l e , a n y money needed via the access facility on a bond about to be cancelled (for instance to pay the transfer costs on a new property) should be withdrawn before the bank is notified to cancel the bond. Once the notice is given to the bank, the facility will usually be frozen.
All municipal rates on the property are paid up and the rates clearance certificate has been received. Without this certificate a deed cannot be registered.
Transfer duties are paid to SARS and a certificate acknowledging this has been received. Again the transfer cannot be registered until this has taken place.
“Many things can hold up or even nullify a transfer process,” says Gunston, “but an experienced conveyancer will prevent these taking place.”