Among those selling and buying property there is sometimes a perception that the conveyancer is an “extra” who has cornered a simple, largely standardised but lucrative legal process for himself and his colleagues when in fact it could be handled by any intelligent clerk.

This perception, said Grant Gunston, Senior Director of Grant Gunston Attorneys, is not valid: a conveyancer, he said, is a key figure in any property transaction and, in fact, the only person entitled by law to handle such work. His specialist knowledge of property law enables him to ensure that the seller avoids the pitfalls that lie 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,” says Gunston.

One of the unfortunate effects of this view, he added, 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, sometimes doing a portion of it himself.

“This practice has been a major cause of the many delays which frequently overtake the property transfer process,” said Gunston.

Conveyancers, he reminds us, have to write and pass a separate professional examination set by the Law Society.

Their primary role is to protect the seller 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 purchaser’s name and the document complies with the many Deeds Office rulings;
  
• the purchaser’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, i.e. giving the 90 days notice required by the banks;
  
• guiding the parties through the transaction, to take one example, any money needed via the access facility on a bond about to be cancelled (e.g. to pay the transfer costs on a new property) should be withdrawn before the bank is notified to cancel the bond.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,” said Gunston, “but an experienced conveyancer will prevent these taking place. He will also detect whether the buyer or any other party is trying to avoid or frustrate an obligation.

“Where disagreements do arise, e.g. over a defect in the property or delays in making certain payments or furnishing guarantees, a good conveyancer, often working with the estate agent, can often mediate a solution. This is especially useful when the sums involved are too small to justify litigation and the seller wants to avoid costly delays. A characteristic of all good legal practitioners is that they are skilled at mediation.”

Although cutting of fees by conveyancers was prevalent in the 2007 property boom days, it is far less evident these days, said Gunston - and in practice it should be avoided if the seller is looking for a truly professional service.

“One has to bear in mind that often the property is the client’s major and possibly only real asset and exceptional vigilance and care have to be taken to protect it,” he said. “Most people would prefer that this is attended to by a skilled professional who is accountable to a professional body such as the Law Society.”

Article by: www.grantgunston.co.za