“I’ve finally found a buyer for my property. I want my brother, who is an attorney, to do the transfer on the sale because then I know it will be done right and fast, but the buyer wants his attorney to do the transfer stating that as he has to pay transfer costs, it should be his right to choose. Whose choice is it?”
According to our common law, it is standard practice that the seller nominates the conveyancing attorney as it is believed that the seller stands more to lose than the buyer if the transaction does not continue.
In a typical property transaction, the costs due by the buyer will be for payment of the purchase price, transfer costs and transfer duty. As this represents a number of costs and financing that need to be attended to before a successful transfer of property takes place, the seller will probably feel more at ease if his nominated conveyancer handles all of these intricate steps and costs to ensure that the transaction is attended to correctly and efficiently. This does not mean that a conveyancer only acts in the interest of the seller. The conveyancer must act in the interests of both parties. However, the fact that the buyer is liable for costs, does not give the buyer a right to nominate the attorney.
It is however possible for the seller and buyer to agree that the transfer can be attended to by a conveyancer agreed upon by both parties and even one nominated by the buyer. If such agreement is made, it should ideally be added as a specific condition of the agreement of sale to ensure that no later disputes arise in this regard.