Who’s in your corner when you buy a property?
Buying a property is exciting, but it is also one of the largest financial and legal transactions most people will ever enter into. There are usually several professionals involved along the way, including the real estate agent, mortgage broker, conveyancer, lender and sometimes a lawyer. Each plays an important role in helping the transaction come together, but they do not all represent the same person.
When you are the buyer, one of the most important things to consider is who you have independently chosen to represent your interests.
Why independence matters
The selling agent has an important role in a property transaction and agents are enormously helpful in keeping a transaction moving. However, the selling agent is engaged by the seller and ultimately acts in the seller’s interests. As a buyer, you should also have your own professional adviser whose responsibility is to look after you.
There is nothing inherently wrong with accepting a recommendation for a conveyancer from an agent, broker, friend or family member. Referrals are a normal part of professional services and are often made because someone has had a positive experience working with that particular conveyancer.
However, we believe buyers should understand the relationships that exist within their transaction and make an informed choice about who they want representing them. Where a conveyancer receives regular referrals from a selling agent, for example, there may be an ongoing commercial relationship between those businesses. That certainly does not mean the conveyancer will not act professionally or provide appropriate advice, but it is nevertheless something a buyer is entitled to consider when deciding who they want in their corner. The importance of that independence may not be particularly obvious when everything is progressing smoothly. It becomes much more significant when something goes wrong.
If an issue arises that requires your conveyancer to question something, insist upon a contractual right, challenge a position being taken by another party, recommend that settlement does not proceed or otherwise give advice that may be inconvenient to someone else involved in the transaction, you should have complete confidence that the advice you are receiving is based solely upon what is best for you.
Conveyancing is much more than transferring a title
One of the misconceptions we often see is the idea that a conveyancer is simply there to transfer the property into the buyer’s name.
Settlement and registration of the transfer are certainly part of the conveyancing process, but the role extends much further than that. Depending upon the transaction and the scope of the engagement, your conveyancer may assist you to understand the contract and Form 1, review the title, identify easements, encumbrances and other interests affecting the property, explain special conditions, identify important dates and obligations and raise concerns where something doesn’t appear to be right.
We see firsthand how quickly a transaction that initially appears completely straightforward can become complicated. There may be an issue with the title or the property itself. Information in the Form 1 may not correspond with what the purchaser understood they were buying. A contractual obligation may not have been satisfied. A problem may arise with finance, settlement may not be able to proceed as planned, or an issue may develop that requires negotiation or legal advice.
These are the circumstances in which the value of independent representation becomes particularly clear. A purchaser needs someone who can look at the situation from their perspective, explain their options and advocate for their interests without competing considerations.
Should the buyer and seller use the same conveyancer?
Where possible, we believe the buyer and seller should each have their own representation.
At the beginning of a transaction, everyone usually wants the same ultimate outcome: a smooth transaction that settles on time. However, the interests of the buyer and seller are not necessarily identical. The seller wants to complete the sale in accordance with the contract, while the buyer needs to ensure they receive what they contracted to purchase and that their rights and interests are properly protected along the way.
Most of the time those objectives coexist without difficulty. Occasionally, they don’t. When an issue arises between the parties, having separate representation provides clarity. The buyer knows their conveyancer is advising them. The seller knows their conveyancer is advising them. Neither professional is placed in the difficult position of trying to balance the competing interests of two parties to the same transaction.
We think the same principle is worth considering more broadly. Independence isn’t simply about whether the same conveyancer formally represents both the buyer and the seller. It is about ensuring that the person advising you is able to put your interests first and that you have confidence in the independence of the advice you receive.
Choose your conveyancer before you choose your property
We encourage buyers to think about choosing their conveyancer early in their property journey, rather than waiting until they have found a property and signed a contract. Traditionally, many people find a property, negotiate the purchase, sign the contract and only then start thinking about who they will engage as their conveyancer. We believe there is real value in making that decision earlier.
Ideally, choosing a conveyancer should happen at around the same time as obtaining finance pre-approval. At that stage, there is no contract deadline running and no pressure to make decisions quickly. There is time for your conveyancer to explain how the buying and settlement process works, what to look out for before signing a contract, the costs you may need to allow for, including stamp duty and any concessions or exemptions that may apply to your circumstances, and what will happen once you find the right property.
Engaging a conveyancer early also provides an opportunity to complete identification, Anti-Money Laundering checks and other onboarding requirements before you are under the pressure of a property purchase. This is particularly valuable once you find a property and contractual timeframes begin to run. In South Australia, the 2 business days cooling-off period can provide a very important but limited window of time for a purchaser to obtain advice and properly consider the contract and Form 1. If the necessary AML requirements have already been completed, valuable time during that period is not spent waiting for compliance processes to be finalised. Instead, your conveyancer can focus on reviewing the documents, identifying any issues and providing the advice you need while you still have the opportunity to make informed decisions about the purchase.
Most importantly, when you do find the right property, you already know who to call. You have someone familiar with you and your circumstances who is ready to assist, rather than trying to choose and onboard one of your most important professional advisers at the same time as negotiating a purchase and dealing with contractual deadlines.
Having someone in your corner
The overwhelming majority of property transactions proceed without significant problems. But occasionally something happens that takes a matter outside ordinary conveyancing, and that is when having the right team around you becomes especially important.
At Robbins Conveyancing, our clients also have the benefit of Robbins Lawyers operating alongside our conveyancing practice. If a matter develops into a contractual dispute, complex title issue or another situation requiring legal advice, our conveyancing team can identify that an issue needs to be escalated and legal expertise is available where appropriate. The client is not suddenly left trying to find a lawyer and explain a transaction from the beginning after something has already gone wrong.
Ultimately, choosing a conveyancer should not simply be another administrative task to complete after signing a contract. It is a decision about who you trust to advise and represent you throughout a significant financial transaction. Whether your purchase proceeds completely smoothly or becomes unexpectedly complicated, you should always know the answer to one question: who is in my corner?
This article contains general information only and does not constitute legal advice. Advice should be obtained in relation to your individual circumstances.
