The role of a conveyancing lawyer is one that many find confusing. At first sight, many people form the view that the purchase of a home shouldn’t be as complicated as it is and that a lawyer may not be required. However, when you dig deeper there are a number of other transactions, negotiations and promises that must happen between all of the parties involved. Unfortunately, we’ve seen a number of instances where someone has tried to save a few pennies by choosing not to engage a conveyancing lawyer, and ended up paying a huge amount more to rectify mistakes.
Conveyancing lawyer: The keeper of promises
At the core of the role, a conveyance lawyer is responsible for enforcing promises, known as undertakings, given by parties to the conveyancing transaction. So serious is this role, that a failing to honour undertakings can see a lawyer forced to do so by the courts, facing censure from the New Zealand Law Society and even disbarment.
More relationships than meets the eye
Conveyancing is not a simple buy-sell transaction. In fact, there is a complex matrix of relationships involved. Both the seller and buyer’s banks are integral to the sale and purchase, as are insurers, Kiwisaver funds, agents, local authorities, Quotable Value, tenants, body corporates, neighbours and mortgage brokers, who all have their separate responsibilities and requirements.
Conveyancing transactions in detail
It is a conveyancing lawyer’s job to bring all of those relationships together and ensure that each party’s concerns are met before the transaction is completed. Much of this activity is invisible to the buyer and seller but it is critical to the transaction happening. Some of the key parties and their requirements are:
Banks will not lend money unless they are confident that the person or persons borrowing the money has met a number of requirements:
- That the documents have been fully explained in accordance with the Credit Contract and Consumers Finance Act 2003;
- Legal undertakings that the money advanced will only be utilised to complete the purchase of the property;
- That the property is insured;
- That a mortgage will be registered over the title to the property securing the bank’s advance.
Until all of these requirements are complied with, the bank will not allow money to be advanced to the person purchasing the property
The seller’s conveyancing lawyer
In the case of the solicitor acting for a seller, the seller’s lawyer makes promises to the buyer’s lawyer that the property can and will be transferred to the buyer on receipt of the purchase price.
The seller’s lawyer must also give promises to the buyer’s lawyer that all mortgages and other encumbrances will be repaid on the settlement date.
Finally, the seller’s lawyer makes promises to the seller’s bank that any loan secured over the property will be repaid.
The buyer’s conveyancing lawyer
A buyer’s lawyer promises that the purchase price has been deposited to the seller’s lawyer’s account and that the funds will not be reversed.
Is this how conveyancing works outside of New Zealand?
Historically, this relationship (with conveyancing lawyers being the givers and keepers of promises) has worked well in New Zealand. However, in other jurisdictions, most notably in the U.S., lawyers have not been trusted in the same way. Instead, the money and documents are all provided to an escrow agent who holds the documents and money until both parties have fulfilled their obligations.
Escrow agents charge significant fees (sometimes as high as 1% of the purchase price) and lawyers are still required by the parties to complete the transfer formalities. Thankfully, New Zealand has managed to avoid this additional level of bureaucracy and cost in conveyancing transactions due to our robust system that enforces the promises of lawyers.
Get advice early
As you can see, there are many more sides to the conveyancing coin than expected. It is important to get legal advice early, and avoid taking on any unnecessary risk in an effort to save a few dollars now – it isn’t worth it!
If you are in the process of buying a property, no matter what stage, don’t hesitate to get in contact with us for some advice to make sure you are doing all the right things in your transactions. We’re Lower Hutt based conveyancing law specialists and want to make things go as smoothly as possible for you.