Estate Agents have an interest in good conveyancing after they have concluded a sale of a Seller’s property. However, they have no business in influencing a Seller to use a conveyancer other than his/her own attorney. Sellers of immovable property have the prerogative to appoint their conveyancers to attend to the transfer of their sold property and to protect their interests in implementing the contract.
An estate agent can very easily contravene the Code of Conduct of the EAAB by trying to influence a Seller to appoint a specific conveyancer who the agent recommends – especially if such conveyancer is one with who that agent has a mutually beneficial relationship.
Following the article in our January newsletter which referred to the importance for Sellers to appoint their own conveyancers in their property transactions: (http://www.chrisfick.co.za/blog/sellers-appoint-your-own-conveyancer/), the undue interference by an agent who was using his position to involve himself with the appointment of a conveyancer, was illustrated in one of my matters. After I had been consulted by my client and instructed to attend to a transfer on his behalf, I received this email from the client:
“Dear Chris,
What is it with these real estate agents?
Now “Bleep Agency” called me to ask if we could please use another conveyancer lawyer because the sale of the buyer’s house has to be at the same time as my transfer and they have no relation with you.
I told “the agent” that you are more than capable, that I will NOT switch to another… Maybe you should contact “the agent” to relax him and discuss the issue.
As far as I am concerned, only you will do the transfer.
Kind regards,
My Client”
I called the agent pursuant to this email and asked him why he found it necessary to involve himself with the appointment of the conveyancer when the client had already appointed us. The agent’s response was that the contract did not specify my name, and as such they then proceeded to appoint a firm of attorneys with who they have a relationship. This was done without consulting the seller and without his permission, authority or his request for assistance in that regard.
The Code of Conduct of the Estate Agents Affairs Board is quite clear:
7. Prohibition Against Undue Influence
No estate agent shall without good and sufficient cause, directly or indirectly, in any manner whatsoever, solicit, encourage, persuade or influence any party or potential party to a pending or a completed transaction to utilise or refrain from utilising… the services of any particular attorney, conveyancer or firm of attorneys.
The agent was out of line, had to concede that he was wrong, and had to undo his instruction to his conveyancer. Agents have an interest in good conveyancing but they need to respect the Seller’s right and prerogative to instruct a conveyancer of his/her choice – preferably a conveyancer with whom the Seller has a relationship, rather than a conveyancer with whom the agent has a relationship. When agents are asked for advice in this regard, they can give a Seller two or more names to consider. However, some agents need to take cognisance of the clear conduct rule which precludes them from imposing their will on the Seller when the Seller has no need for their interference. It boils down to agents required to act professionally, and in the interest of the client, and not behaviour which primarily serves the interests of the agent.
Article by Chris Fick & Associates Inc. – Dependable Conveyancers since 1998
Chris Fick – chris@chrisfick.co.za