Thabang asks:
I am looking for a house to buy, but from the articles on your website I see that things can (and do) go wrong when buying a house. I would just like to make sure who is supposed to appoint the attorney to handle the transfer of ownership.
I read an article that says I should use my own transferring attorney. But the real estate agents I have spoken to say that the seller will appoint the conveyanser (sic).
So who is right? Does the buyer or seller appoint the transferring attorney? I want my attorney to do the transfer, because I will be paying for it, and I want him to represent me - not the seller.
Could you maybe point me to some reference that says who appoints the conveyancer?
Dear Thabang,
You are very wise to want your own attorney to effect the transfer of your new property. And you have every right to appoint him/her to do the job, if you can get the seller to agree.
There is no law that says only the seller has the right to appoint the conveyancer who will register the sale in the deeds office. It is up for negotiation. But you will have to reach agreement before concluding the agreement of sale, because common law will apply if the contract of sale does not specify who appoints the transferring attorney.
KwaZulu-Natal is probably the only province in South Africa where you might be able to argue that common law precedent allows you as the purchaser to appoint the conveyancer. I said "might", because the legal precedent for this is very old, and even then it relied on an argument based on "tradition". In the last eighty years, the "tradition" (even in KwaZulu-Natal) has very clearly changed to one where the seller appoints the transferring attorney.
Your argument for appointing the transferring attorney because you will be the one paying the conveyance fee is a valid one. And I would always advise you to make sure that the attorney is on your side - especially if there will only be one attorney. But the seller might feel exactly the same.
If you cannot get the seller to agree to allowing you to appoint the attorney, I suggest that you at least try to change the contract to state that the tranferring attorney will be appointed jointly by you and the seller. This way, you can make sure that the attorney treat both of your interests with equal respect. And if a dispute arises during the transfer process, the attorney would not be able to institute legal action against you on the seller's behalf. Both parties would then have to retain their own legal council.
This is the second prise, though. You actually want your attorney to handle the transfer, so negotiate for it. It shouldn't be that hard.
You can read more about the common law precedent regarding the appointment of conveyancers here.
I hope this answers your question properly. But don't be afraid to ask if it isn't clear.
