Conveyancer vs Solicitor: Which Should You Choose?
When you find your dream home, there’s no feeling in the world to match it. Of course, the process of actually transferring the title of the home has a lot of moving parts and pieces to it. Many of the documents and steps associated with buying (or selling) have complex legal ramifications and the ins-and-outs are not easily understood by a layperson. While the law does not prohibit you from navigating these (to you) uncharted waters, you do not have to go it alone. After you’ve found that perfect piece of real estate, your next critical decision is whether to hire a conveyancer vs solicitor to help with the negotiations and settlement details. Fortunately, we are here to help you with this aspect of your dream transaction. Let’s start with a few basics.
What is a conveyancer? When you buy or sell a piece of property, you transfer the ownership of the property’s legal title from the owner to the buyer. This is known as a title conveyance and it affects what happens before the contract, before the transaction completes, and what happens after the settlement. So, a conveyancer is a person who helps you through this process.
You do not have to select a solicitor to serve as your conveyancer, although there are certainly many who provide those services. You should understand, however, that if you do not use a solicitor as your conveyancer, circumstances may arise in which a solicitor is the only one permitted to address the contingency — in which case you will pay for a conveyancer and a solicitor. While the law allows you to represent yourself to convey property, only do it if you have experience in each part of the process. Interesting side note: Even most real estate professionals do not handle the property settlement process when buying property for themselves without a conveyancer’s or a solicitor’s assistance.
If you do not use a solicitor, take care to select a professionally licensed conveyancer who will work on your behalf to:
- provide advice and information about the property for sale,
- represent your interest with the real estate agent or seller,
- prepare the required documents (such as the contract for sale), and
- settle the transaction.
For the buyer, a conveyancer provides the following critical services:
- a title search,
- determines the type of title the owner has to transfer,
- researches any impediments exist to the transfer (like existing easements) or other questions that need addressed,
- makes sure your deposit is safely entrusted into a trust account,
- determines any adjustment of rates/taxes, and
- settles the financial transactions with your bank on your behalf.
Conveyancers who are not solicitors handle most South Australian land transactions. Australia has a 150 year history recognising the conveyancer profession, previously known as land brokers.
Finding a Conveyancer. As is the case with most things in life, the best referral is from someone you know or from a family member. Alternatively, ask a professional like your real estate agent, or a solicitor. Before you settle on a particular conveyancer, do your due diligence to see if there are any complaints filed against him and if he is professionally licensed to do the kind of conveyance you need. Ask if he is a member of the Australian Institute of Conveyancers (SA Division) and if he earned that organisation’s accreditation certificate. Remember, if the person is not a licensed conveyancer, he cannot legally do any of the work to convey the property title to you.
You can search online on the website for the Consumer and Business Services Division to see if a conveyancer you want to hire is in good standing with his professional license. You can also search for a member conveyancer through the Australian Institute of Conveyancers whether you want an individual or a business practice of conveyancers.
What additional help can a solicitor provide? Just because both conveyancers and solicitors can help in a real estate transfer of title, does not mean that the level of service you get from them is the same. If you need someone to review the legal contract for sale to determine the risks in the agreement or whether the terms are in your best interest, only a solicitor can do that. Also, solicitors can serve as Power of Attorney if you need that service, while conveyancers cannot.
Remember: If a conveyancer goes outside the scope of his license, his professional liability insurance will not cover any loss owed to you. A solicitor, however, has no limits on what he can do with respect to property conveyance, and his professional liability insurance will cover any liability owed to you for irregularities in the settlement process.
Conveyancers help with financial matters. No, conveyancers cannot help you obtain a loan to buy the property you want. They do, however, generally have good contacts in the financial industry through the work that they do. They most likely will have financial institutions or individuals they can recommend to you to contact for financial assistance.
I want to buy a property that is for sale by owner. Will the seller still have a conveyancer? Be wary if the seller does not have a conveyancer. After all, there is still a contract of sale to draft, a Form 1 statutory disclosure statement to prepare, and other legal documents required before the sale is final. It is in your best interests that the seller works with a professional conveyancer to prepare these documents so they comply with legal requirements. Just remember, though, that the seller’s conveyancer works for the seller, not for you. You need a conveyancer to represent your interests as well. While a conveyancer can work for both parties in a property transaction with their consent, it is not recommended in most cases and, if a conflict arises, the “dual” conveyancer must withdraw from the transaction.
Would you like to learn more about how Titlexchange’s lawyers can help you get to settlement? Book a call with one of the friendly team today.