The Conveyancer’s Duty of Care: Mitigating Risk in Property Transfers

Introduction 

The conveyancer plays a pivotal role in ensuring the smooth and legally compliant transfer of property. Beyond administrative tasks, conveyancers owe a duty of care to their clients, which, if breached, can result in significant financial and legal consequences. This article examines the practical implications of this duty, highlighting common pitfalls and lessons from case law in which conveyancers have faced liability. 

The Duty of Care in Conveyancing 

Conveyancers are entrusted with ensuring that property transactions comply with statutory requirements, including: 

• Accurate drafting of sale agreements and transfer documents 
• Verification of title deeds and encumbrances 
• Ensuring compliance with all relevant legislation, including the deeds registries act and alienation of land act.¹  
• Proper handling of client funds and bonds 
• Timely lodgement of documents at the deeds office.² 

Failure to meet these obligations may expose both the conveyancer and the client to risk, including financial loss, delays, or invalid transfers. 

Common Errors and Associated Risks 

• Incorrect or Incomplete Documents
  • Errors in deeds or transfer forms can lead to registration delays or void transactions. 
• Improper Handling of Client Funds
  • Mismanagement of deposits, bonds, or fees can breach fiduciary duties and expose conveyancers to disciplinary action. 
  • Ensuring trust account compliance is essential. 
• Delays in Lodgement or Registration
  • Delays may impact financing arrangements or lead to the client breaching contractual deadlines. 
  • Conveyancers must proactively monitor the deeds office and communicate regularly with clients and financiers. 

Lessons for Practitioners 

• Always conduct thorough due diligence, verifying all title deeds, municipal approvals, and encumbrances. 
• Maintain clear and timely communication with clients, ensuring they understand risks and obligations. 
• Implement checklists and quality control measures to prevent clerical or procedural errors. 
• Stay up to date with legislation and registrar circulars particularly amendments to the Deeds Registries Act and related property law regulations.³ 
• Where in doubt, consult with senior colleagues or specialists to mitigate risk. 

Conclusion 

The conveyancer’s duty of care is not merely procedural; it is a core professional obligation that safeguards both clients and practitioners. By understanding common errors, learning from case law, and implementing rigorous checks and processes, conveyancers can minimise risk and uphold the integrity of property transactions 

For further assistance, consult an attorney at SchoemanLaw Inc.

Anastacia Willemse | SchoemanLaw Inc 
https://schoemanlaw.co.za/our-services/conveyancing-and-property-law