Conveyancing Legal Advice
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The giving of good legal advice involves the obtaining of an understanding of what the client wants to achieve, the checking of relevant documents, having a sound understanding of relevant principles of law or researching finer points of law, and then explaining to the client what options are available.
When a person needs legal advice it is important that the person providing that advice not only knows the law and how to apply it, but is also in a position to provide that advice without bias.
The lawyer must always be totally “independent” of the matter. In other words, the lawyer should never be personally involved in the matter, and should not be acting for, or advising anyone else who is involved in the matter or who stands to gain anything from it.
While everyone will offer “legal advice”, (conveyancers, commission estate agents, friends etc. will all tell you their understanding of the law) only a lawyer has the qualifications, expertise, and a fiduciary duty to provide legal advice and to take full responsibility for the legal advice given.
Legal advice is more than simply stating the law. It is also necessary for a legal adviser to discuss practical aspects with the client.
Example: vendor clients are often told by commission estate agents, “Yes, it’s OK to accept a small deposit on the sale, because you can always sue for the balance later”.
While this may be strictly true, commission estate agents have little understanding of the difficulties associated with “suing” someone.
Our advice on such a matter would include not only the legal right to sue, but also the fact that a person who can’t afford to pay a full deposit may not have the resources to complete the purchase,
may be unable to obtain finance, and may not have any assets worth suing for.
Further, suing someone involves a great deal of investment in terms of funds (to pay the legal costs associated with court matters), time, and stress (there may also be matters of conscience too, if the commission estate agent has “sold” the property to someone who is obviously unable to afford it).
We would advise the client that the better way to handle the situation would be to insist that the commission estate agent obtain the full deposit before having the vendor accept the purchaser’s offer, or that the property be sold to a purchaser who is more financially secure, or that the client be prepared to accept the risk of the sale falling through while still being required to pay the agent’s commission (See our reference to Exclusive Sale Authority).
