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Appointment of Conveyancer by Seller

One of the most taxing issues regarding the sale of a property is conveyancing. In legal terms this refers to the transfer of the the legal title of the property from one person to  another once the contract of the sale has been agreed upon by all parties. In the past it was stated that, under common law the seller of the property was  the one who nominated the conveyancer, even if the transfer costs were paid by the buyer. Later court rulings stated that where no specific stipulation had been made, it  would be the buyer's right to appoint the conveyancer. Nowadays in South Africa it is common practice for the property seller to nominate the conveyancer.

Sellers have generally insisted on the their right to appoint the conveyancer for the reason that they are exposed to a higher level of risk due to the fact that it is usually the  buyers who delay the transfer process or breach the terms of agreement. Conveyancers nominated on behalf of the buyer are less likely to act in the interests of the seller,  and are then likely to  incur resentment or anger from the seller towards the buyer, which they represent.  This results in a conflict of interest when the potential buyer might be  reluctant to take action, and this in return puts the conveyancer in a bind, because they do not adhere to the full terms of the agreement of sale, thus jeopardizing the partiality  of the converyancer.

The most important task with which the converyancer is provide, is to ensure that the transfer of the property is not processed before the purchase price has been  secured -  a much more urgent issue in the eyes of a conveyancer who is appointed by the seller, as opposed to someone nominated by the buyer. Buyers might form business relationships with conveyancers and thus persuade them to rely on lesser forms  of security in a potentially detrimental move.

From a legal perspective, the property remains under ownership of the seller until the transfer date, therefore it is justifiable that the transfer be assigned to a party known by  and acting on behalf of the seller.

Regardless of who nominates the conveyancer, it is important to take note that they have a duty to both the buyer and the seller. If the appointment of the conveyancer is jointly  agreed upon  by both parties, and an unavoidable conflict of interest arises, then the buyer and seller can consult their own attorneys while the conveyancer continues with the  transfers process.
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