Property transactions are an expensive and bothersome exercise for most people. So in a property transaction, many would tend to find ways to save a few bucks, if they can.
The fact is when you buy a property, you would need about 20% to 25% of the purchase price [including a little bit of renovation], cash up front. And this is only if you could get a 90% loan. There are also expenses where you may think is unnecessary, but yet is compulsory to pay such as stamp duties, valuation fees and legal fees. And this amount of money may be quite painful to depart for most people.
And to be absolutely honest, when I had purchased my first property [an apartment], I took an Islamic home loan, only because I could get a 40% discount on the stamp duty of my loan agreement. I suppose it did come with a price, because the agreement states that I was not allowed to consume pork and alcohol in my apartment. I even argued many times with the property valuation company insisting that they give me a better discount.
So naturally when it is your turn to sell a property and you are told that you actually do not need a lawyer to represent you, you immediately opt not to.
Many may think that the purchaser’s lawyers can actually act for both the vendor [i.e. the seller] and the purchaser at the same time, for the same transaction. However, lawyers are prevented in law to do so. We cannot be representing both the purchaser and the vendor at the same time, for the same transaction. [Order 7, Solicitors Remuneration Order 2006] And if any lawyer is caught doing it, he/she will be subjected to disciplinary proceedings and a possibility of disbarment.
The logic behind this rule is that a lawyer is supposed to represent to the best interest of their clients. And if a lawyer represents both the vendor and the purchaser, who will have opposing interests, the lawyer would obviously be in conflict.
Well, I am not here to tell you [just because I am a lawyer too], that if you are selling a property, that you most definitely must to get a lawyer. And just by typing “why do I need a lawyer for property” in the google search bar, a whole list of articles will actually reveal that you do not need a lawyer when you are selling a property. Nonetheless, there is no denying that by not having a lawyer, when you are a vendor in a property transaction, your risks in that transaction will increase.
So maybe you may suspect that the apportionment calculated may be wrong, maybe you do not quite understand the contents of your sale and purchase agreement or maybe you do not get the money in time. You may still decide not to appoint a lawyer, because you feel that you can still handle trying to understand what is going on by checking the internet or bombard questions to friends who may have some experience of such transactions.
Generally, it would be prudent for even a vendor for any property transaction to engage a lawyer. However there are circumstances where it may be absolutely more crucial than not, to engage one and I have listed as follows some indications:-
Where the purchase price is high
When the stakes are high, risks involved are higher as well. This is where you would want to know exactly and from the start, what are your rights when you or the purchaser tries to back out from the transaction or when should the money be paid to you. Although, the definition of a high purchase price may be subjective depending on individuals.
When you do not entirely trust the other side and possibly the real estate agent
Say you found a buyer with the best price offered, but yet it still leaves your gut pulling about the situation. This would probably be a good time for yout o get a lawyer for yourself. This is because any property transaction which would normally involve hundreds of thousands, so investing a couple of thousands on legal representation when the other side is questionable may be worthwhile.
When the purchase/sale is particularly complicated
An example of a property transaction being complicated is when the property developer had gone bust, and a liquidator has taken over in the shoes of the wound up developer. There are many processes to undergo, forms to fill up and timelines to meet. So if the purchaser’s solicitors or the purchaser has exceeded the limit of fulfilling certain tasks, at least you will know your rights as to how to get out of the arrangement, should you choose to do so.
You may wonder in all these, what role actually does a lawyer play, when everything has a template and rubber stamped, but the role of a lawyer in property transactions has more significance than people [even our fellow lawyers] tell you or what the perception is.
For a lawyer acting for the purchaser, he/she has to ensure that the ownership of the property is officially transferred to the purchaser, after payment of the purchase price. Also, the lawyer ensures that the property to given to the purchaser within the time stipulated in the agreement.
And for a vendor amongst others, the lawyer’s most important role is to ensure that the monies are paid as stipulated under the agreement.
The fact of the matter is that your property lawyer will be the one carrying your burden during the arduous transaction of timelines to meet, forms to fill, how to fill the forms, which departments to present it to, dealing with the inconsistencies of individual land offices and at all times, ensuring that your interests are protected.
The crucial role of a property lawyer cannot be emphasised further by concluding with this case, Lau Tek San @ Lau Beng Chong v S K Song [1995] 2 CLJ 425, where the lawyer acting for the alleged vendor was ordered by the Court to refund all monies to the purchaser together with the expense the purchaser had incurred, when it was subsequently found out that the alleged vendor himself had forged his identity card and falsely held himself to be the registered owner.
So whilst it is understandable to want to save money when you have an option to, but at the same time, to able to rely on a lawyer who is trained to deal with such legal complications and tedious transactions, may make you sleep better at night.
Eunice
[25.7.2014]