July 27, 2018

Does the seller or the purchaser have the right to choose the transferring attorney?

When buying a property, the purchaser is responsible for the transfer fees of the attorneys, who are appointed by the seller. I have a close friend who is buying a property and she requested that our firm attends to the transfer. The seller is insisting that her attorneys must do the transfer. She has approached me to confirm whether she has a legal right to use her own attorney.

Common law determines that the seller is entitled to nominate the transferring attorney. This is because the seller authorises the transferring attorney, by way of a power of attorney, to transfer the property to the purchaser. The parties may still agree to appoint the purchaser’s transferring attorneys. However, should the seller refuse, the transferring attorneys of the seller will have to be used. In some instances, the agent insists that their attorneys on panel are used. The seller still has the final decision.

The purchaser is responsible for paying the transferring fees, and therefore they feel they have the discretion to appoint their own attorney. However, the purchaser is required to raise the purchase price by way of a bond approval or deposit, cover the transfer fees and meet suspensive conditions, 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 regarded 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.

As confirmed, it remains open for the parties to negotiate the appointment of the transferring attorney and include a clause to such effect in the sale agreement and good reasons may exist which supports the purchaser being entitled to appoint the transferring attorney.

 

Raullene Marais
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