There are two professionals able to do conveyancing – lawyers and conveyancers.
Licensed conveyancers are non-lawyers who have been licensed to perform a part of the legal work associated with a real estate transaction, so long as it does not go beyond “conveyancing work” as defined in the Conveyancers Licensing Act 2003.
There are times when a licensed conveyancer is duty-bound to refer a client to a qualified lawyer for further assistance (i.e. whenever the matter goes beyond simple “conveyancing work”, or involves issues too complex for the licensed conveyancer to handle).
Conveyancers should have professional indemnity (PI) insurance, however due to the restrictions on the advice that they are able to provide, their insurance will only cover conveyancing work. It is reliant on the conveyancer acknowledging when the work goes beyond conveyancing work – if it does, they are not covered by PI, and the client has no recourse.
Due to the lower levels of professional qualification, scope of advice and level of professional indemnity insurance, licensed conveyancers use price, often “flat-fee” conveyancing to attract clients.
Lawyers who do conveyancing on the other hand are able to perform all legal work associated with conveyancing transactions and property law. For example, a lawyer can provide legal advice as to the appropriate purchaser having regard to asset protection and tax planning issues or the conduct of an estate agent who engages in underquoting, over quoting or dummy bidding.A lawyer carries professional indemnity insurance for everything the lawyer does on the client’s behalf.
When potentially serious complications arise in a property transaction, lawyers will be well placed to assess the situation and take legal action promptly. A lawyer has the ability to determine the seriousness of the matter and access resources to research the legal issues. A well worded letter from a qualified lawyer can solve problems before they get out of hand.
How Common are Issues?
In our experience, it is quite common for legal issues to pop up in property sales. Some are very minor and are easily addressed, and occasionally we see some serious matters. Examples include: acts of fraud, allowing the deposit to be released prior to completion, claims for compensation and damage to property between exchange and completion.
Edney Ryan Legal
At Edney Ryan Legal, we have a wide range of commercial and private clients who buy, sell or develop property. We execute the legal requirements for their commercial and residential property sales and purchases, and commercial leasing requirements. Call us on (02) 9908 9888 for property or conveyancing matters.