If the buyer is allowed to nominate the conveyancer, the seller must reserve the right to change this

One of the anomalies of the property world is that although the seller usually appoints the agent, the purchaser pays his fees. Furthermore, the conveyancer’s duty is to protect the interests of the seller, even though it is the buyer who is paying him.

One of the reasons that the conveyancer is usually appointed by the seller is that it is more common for the buyer to be in breach of a deed of sale than the seller.

Occasionally, the buyer will argue that, as he is paying the fee, he would like a friend, a relation or a colleague to handle the work – and he may be able to show that this person will offer a reduced fee. 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 the payment or on some other aspect of the deal? And, what can the seller to if it appears that the conveyancing process is being deliberately delayed?

If the conveyancer is close to the buyer either for business or personal reasons will he be diligent in protecting the seller’s interests? Is there not likely to be a conflict of interests?

Conveyancers, says Anton du Plessis, CEO of Vineyard Estates, occasionally have been known to move slowly and in the absence of any remedy, this exposes the seller to risk.

If, therefore, any Vineyard Estates clients agree to the buyer’s nominee being appointed as the conveyancer, du Plessis says he always advises the seller to insert a clause in the sale agreement stipulating that he reserves the right to change his conveyancer at any stage in the deal and the buyer remains responsible for all “wasted” costs, i.e. those of the dismissed conveyancer and those of the new appointee. It is further advisable, says du Plessis, to ensure that the first conveyancer is instructed to hand over to the new conveyancer all documents relating to the sale, as well as all monies and guarantees that are held.

The seller, says du Plessis, may also be exposed to risk where guarantees are made out to pay a specific law firm by a specific date. At the time of signing, therefore, the seller should insert an additional 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.

Article by: www.vineyardestates.co.za