Buying or Selling a House
Dear Lex Fori Lawyers,
I am buying a house and need someone to do the conveyancing work. Do I need a Lawyer for this or can I hire a non-lawyer conveyancer? They say to hire a non-lawyer conveyancer is a lot cheaper than hiring a Lawyer. Can you tell me the difference between the two?
To answer your question, you must first properly understand the concept of conveyancing. This is because on occasions a simple conveyancing transaction can become extremely complex. Once you understand what the process entails, you will then be in a position to decide for yourself who you should consult to do your conveyancing.
What Is Conveyancing?
Conveyancing is the process of transferring the legal ownership of real estate from one person to another. Conveyancing in NSW is a legal procedure and introduces and includes a number of complexities.
Conveyancing Is About Keeping Things on Track
A simple way to state the situation is to say that conveyancing procedure involves, not only doing the conveyancing, but also keeping the conveyancing process on track.
As mentioned above, conveyancing can be a very simple process when everything is simple and straight-forward, and anyone can complete the processes and procedures necessary to effectively transfer ownership of a property. However, the real skill in conveyancing is not so much a knowledge of conveyancing procedures or even conveyancing law. Rather, the real skill in properly completing a conveyancing transaction is in anticipating potential problems, both legal and procedural, and addressing them before they materialise.
The conveyancing work , if it relates to a sale, does not commence until the sale has taken place, because it is the sale contract that gives rise to the right of the purchaser to have ownership of the property transferred.
In the case of a purchase, the conveyancing process may not commence until the estate agent has sent a copy of the signed contract or Contract Note to the purchaser’s lawyer. In many cases, the purchaser will have bought the property before telling the lawyer that conveyancing services are required. We advise strongly against the purchasing of real estate without prior legal advice regarding the rights and obligation arising from the contract, as all real estate contracts are prepared in favour of the vendor, and may expose an uninformed purchaser to serious risk.
Using A Licensed Conveyancer:
A licensed conveyancer is not legally qualified and cannot give any legal advice on any matters. Some real estate agents have shown a preference for conveyancers because they lack legal knowledge, they are not permitted to offer legal advice, and they are easily manipulated by estate agents.
The perception is that conveyancing services are cheaper through a conveyancer. However, while some conveyances may charge less than lawyers charge, most charge similar or higher fees.
Most importantly however, the truth of the situation is that conveyancers charge lower fees for a lesser service. When the legal work component is removed from the conveyancing work involved in the sale or purchase of real estate, the consumer is left with a mere clerical service, with none of the protections associated with full legal representation.
Using A Lawyer
The role of the lawyer in conveyancing matters extends beyond merely completing the conveyancing work component. Lawyers have a duty to actually advise their clients, and to give their clients the full benefit of their knowledge, skill and expertise.
When a lawyer offers conveyancing services, these will invariably include the giving of legal advice regarding pre-contract rules and procedures, contractual obligations and the precise nature of the relationship between the client and the other party.
In addition to the obligation to provide legal advice and assistance throughout the conveyancing matter, lawyers must carry full responsibility for the client's legal well-being and financial safety throughout the conveyancing matter.
Lawyers, as well as performing all aspects of a conveyancing transaction, are also able to advise on collateral matters. Other areas of law such as Family Law, Wills and Estate, Taxation, just to name a few, can all affect, or be affected by, a person’s ownership of real estate.
If there are any problems with a conveyance a Lawyer can take the vendor or purchaser to Court and seek orders such as specific performance of the contract. Only a Lawyer can represent you in Court, a non-lawyer conveyancer has no right to appear in Court.
Thank you for your question. We hope we have answered it to your satisfaction. If you require legal advice on Conveyancing and Property Law or advice on any other area of law, please do not hesitate to contact us on (02) 9723 8793.