Once a property owner has accepted an offer for the purchase of his/her property whereby a deed of sale has come into operation (provided the transaction is not subject to fulfillment of a suspensive condition), the agent will ask the owner (now referred to as the seller) to nominate the transferring attorney.
It is important to note that it is the prerogative of the seller to nominate the transferring attorney despite the fact that the purchaser is liable for payment of the transfer costs, which include the fee of the transferring attorney. Sellers are often requested to allow the purchaser’s attorney to attend to the registration of transfer. However, as will be seen later on in this article, to accede to such a request may ultimately be regretted.
If a seller does not regularly engage the services of an attorney and he/she is therefore referred to one, for example, by the estate agent who had procured the sale, care should be taken that the deed of sale clearly states that the appointed attorney will be attending to the transfer on behalf of the seller.
To this end it needs to be stated that there are quite a number of well-established law firms in Hermanus comprising reputable attorneys, many of whom with many years of extensive experience in property transfers and related matters. Therefore, when an estate agent recommends a transferring attorney from, say, Cape Town or surrounds instead of one from a local law firm, it might be prudent to enquire as to the reason for that.
More often than not, it would appear that such an agent may be acting under strict instructions from his/her principal to “support” attorneys from elsewhere, which in many cases may entail sellers being encouraged, influenced and/or persuaded to nominate such attorneys, in direct conflict with the current Code of Conduct of the Estate Agency Affairs Board (EAAB). Before simply accepting an estate agent’s recommendation of an attorney 100 or more kilometres away, a seller should perhaps enquire as to such agent’s reason/s for deliberately overlooking equally (if not better) equipped local attorneys.
Considering the number of continuous calls that transferring attorneys generally receive from concerned parties (very seldom from purchasers, though) regarding the progress with registering a transfer, it is clear that a swiftly concluded transfer is of the utmost importance. This is particularly true as far as the seller and the estate agent are concerned, as both of them have considerable financial interests in a speedy conclusion of the transaction. The seller is obviously eager to acquire the proceeds from the sale of his/her property and the estate agent is equally anxious to be remunerated for his/her efforts in finding a suitable buyer for the property.
A deed of sale should at all times comprehensively describe a purchaser’s obligations towards the seller and clearly state the sanctions for non-compliance. Strict compliance by a purchaser of his/her obligations in terms of the deed of sale is the only way to ensure a swift transaction (to the extent that a 6 to 10-week process can be considered “swift”).
The obvious person equipped to enforce the seller’s rights in terms of the deed of sale is a transferring attorney of the seller’s choice and who at all times acts in the best interest of the latter.
It is therefore probably not advisable to name the transferring attorney in the deed of sale but rather to stipulate that the “seller’s attorney” is to effect transfer. In the (hopefully unlikely) event that a seller becomes disillusioned with the service rendered by the transferring attorney, nothing will prevent him/her from terminating the attorney’s mandate and appointing a different attorney to attend to the transfer in order to protect the seller’s interests. If the transferring attorney’s name is inserted in the deed of sale, it becomes part of the agreement with the purchaser, rendering it incapable of being deviated from unless agreed to in writing by the purchaser.
In the unfortunate event that the purchaser’s attorney is appointed to register the transfer and the purchaser fails to fulfill his/her obligations in terms of the deed of sale, who will enforce the seller’s rights? Most certainly not the purchaser’s attorney! The purchaser may fail to, for example:
- pay the deposit;
- furnish the transferring attorney with the required FICA documentation;
- sign the transfer or bond documents and/or pay the transfer or bond costs;
- secure or pay the purchase price / furnish guarantees for payment thereof;
- pay occupational interest;
- comply with any other obligation in terms of the deed of sale.
The seller then has to instruct his/her attorney, who in the first place should have been instructed to attend to the transfer, to enforce the seller’s rights as contained in the deed of sale.
(This article is merely a general information sheet and should not be used or relied on as legal or other professional advice. No liability is accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information contained herein. Always contact your legal advisor for specific detailed advice or contact us for further assistance.)