Why must I, the purchaser, pay the transfer fees, but the seller can choose the attorney?
“I’m buying my first property. I’m quite nervous about everything
and a friend of mine who is a conveyancer said she would help me with
the transaction. However the seller is refusing and insisting that his
attorneys must do the transfer. If I am the one paying the transfer
fees, surely I should be able to nominate the attorney to do the
transfer?”
As a rule of thumb our common law determines that a seller is the party
entitled to nominate who the transferring attorney must be, given that
the seller carries more risk than the purchaser. That said, nothing
prohibits parties from agreeing that the purchaser can nominate the
transferring attorney, although often in practice, the seller refuses to
agree to such a condition and the purchaser then concedes for want of
having the property.
Generally, it could be said that it makes more sense for the seller to
nominate the transferring attorney as the purchaser is required to raise
the purchase price, cover the transfer fees, meet suspensive conditions
such as financing etc. 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 seen 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.
Regardless, of who appoints the conveyancer, the conveyancer owes a duty
of care to both parties and must represent both parties fairly, unless a
dispute arises in which case the transferring attorney will be allowed
to act on behalf of the party who nominated him. It remains open for
parties to negotiate the appointment of the transferring attorney and
include a clause to such effect in the contract of sale and good grounds
may exist which supports the purchaser being entitled to appoint the
transferring attorney.
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