May a purchaser appoint the transfer Attorney?

This week we will be answering a query from one of the readers which we believe is in relation to an article placed in the advertiser a few weeks back about the appointment of a transfer attorney. It must be stipulated that a transferring attorney must be appointed in every transaction that relates to the transfer of immovable property (a house/factory/building) from one person to another. The question we are addressing is who may appoint the attorney.


The previous article explained why it is generally the Sellers prerogative to nominate the transferring attorney and it must be stated that we agree with the contents of that article and I thank the attorney for providing the interesting content contained therein.


We, however, have received a query which asks how a PURCHASER can nominate the transferring attorney and will only deal with this scenario in this article.


Let’s start off with the process. When a person wants to purchase a property they generally complete an offer to purchase (which is referred in the industry as an “OTP”).


Contained in this offer are all the details of the proposed sale. What may be contained in the offer, however, are what we call suspensive conditions.


This sounds like a complicated legal term but before you switch off and turn the page a suspensive condition is basically a “subject to” condition. Essentially the condition suspends the agreement until the condition is fulfilled.


A common condition in OTP’s is the bond condition which normally stipulates that the offer is “SUBJECT TO” the purchaser obtaining a bond. Therefore, if the purchaser fails to obtain the bond, the agreement cannot continue and “falls away”.


If you are a purchaser and should you wish to employ the services of a particular attorney, all you would need to do is place a “SUBJECT TO” condition in the offer which makes the offer SUBJECT TO the relevant attorneys being appointed as the transferring attorney (known in the industry as the conveyancing attorney).


In an attempt to assist any agents, purchasers or parties who are not sure how to word the clause it would look something like this:

“This offer is subject to Tuckers Inc being appointed as the transferring/conveyancing attorneys”.


It’s as simple as that.


Therefore, should you be wanting to purchase a property, and should you wish for your resident attorney to assist you, you are more than able to do so.


Should anyone require any assistance with offers or the terms contained therein they are welcome to contact us for advice.