What Do a Property Lawyer and an Oil Well Firefighter Have in Common? Conveyancer vs Property Lawyer

As a senior property lawyer, I often think about the market for conveyancing services.

Conveyancing is the sale or purchase of a property.

Conveyancing often has a low key presence and perceived to be routine and repetitive. Service providers can often react to this perception and provide a lowest common denominator service for the lowest possible cost. There is nothing wrong with this from their perspective. It is a business decision and one that might be highly profitable for them.

But what about for you as the purchaser, vendor, developer or an investor in property? What kind of service are you getting? What opportunities are you missing? What problems might you face?

The way conveyancing is handled can be life or death for a property transaction and the consequences are often very high stakes for all involved. These consequences can include, among many other things, losing or saving a deal before or after it is made and avoiding or crystallising the potential loss of a deposit paid.

Complicated deal terms or problems can be handled by experienced property lawyers commercially, assertively, diplomatically and with calm confidence. This comes from many years of experience on many different transactions for many different parties.

This is especially valuable in higher value property transactions including property development, collective sales, commercial property deals, off the plan, strata matters, disputes and any deals where bespoke conditions, options, joint ventures, subdivision etc are required.

It is also valuable when problems come up in completing the deal and ad hoc problems that arise between exchange and completion or during an option term.

In my own decade of practice as a property lawyer, some examples of what I have done or advised on and the real world impacts include:

• Delay settlement of a part of a collective development site purchase (a line of commercial properties) by a period of months for a developer who had difficulty obtaining finance. I identified and relied on two breaches by the vendor (failure to give a mandatory conveyancing notice on time and failure to give proper vacant possession) and those breaches were not apparent to the inhouse counsel representing the vendor until I formally notified them. This entitled my client to delay settlement of the purchase of the land by a period of months with no interest accruing. This was worth tens of thousands of dollars in saved interest and allowed the deal to remain in tact. It only cost my client a fraction of that commercial benefit in additional legal fees for this review and action.
  

• Delay settlement of a part of another collective development site purchase (a line of homes) by a period of two weeks for a developer who had difficulty obtaining finance on time. I identified and relied on a breach by the vendor in failing to give vacant possession and allowed settlement of the entire site to be delayed. This was also worth tens of thousands of dollars in saved interest and allowed the deal to remain in tact. In addition, in this case, it ensured that my client did not have to report a breach to a financier as a result of this decisive action. Again, as in the previous example, it only cost our client a fraction of that commercial benefit in additional legal fees for this review and action.
  

• Required the re-entry of a call option deed on the basis that the deed was defective and allowed the vendor to rescind on the basis of the NSW conveyancing legislation. My client was looking to take a nomination of call option deeds (collective sale of strata apartments) and become the grantee as the incoming purchaser of a development site. Before doing so I recommended a careful due diligence review of each of the call option deeds as they were "residential property" and therefore subject to very strict mandatory requirements under NSW conveyancing legislation. The call option deeds over a number of strata properties were non-compliant as they did not attach completely the form of in-force by laws. This is an easy oversight which both vendor and purchaser (two sets of solicitors) missed when they originally entered into the deed. As a condition precedent in the nomination terms, my client successfully sought that the deeds be cancelled and re-entered on the same terms but with the non-compliance rectified. If this had not been done, the vendors, even after the nomination (for which my client would have paid good money for), would have had a legal right to cancel the call option deeds without any penalty. The commercial ramifications would have been devastating in the absence of our review. If the non-compliance would not have been rectified, the vendors could either rescind or insist on new terms or a greater purchase price which could have been very tempting for a vendor if the market had increased over time or a vendor had changed their mind. If that very real risk had materialised, all work over a 1-3 year period by the developer would have been wasted. The potential loss of millions of dollars (both in actual expenditure and opportunity cost) was avoided for a fraction of the legal cost in taking this additional due diligence step and requiring rectification of non-compliant call option deeds before taking the nomination (and paying for it!).
  

Reflecting on the above, the old adage "if you think it's expensive to hire a professional to do the job, wait until you hire an amateur." comes to mind. This quote is attributed to a man named Red Adair who is described on Wikipedia as "an American oil well firefighter... [who] became notable internationally as an innovator in the highly specialised and hazardous profession of extinguishing and capping oil well blowouts, both land-based and offshore."

I had a chuckle to myself reading about Red Adair and how ironically it can apply to conveyancing.

Often a conveyancing matter can be as routine and uncomplicated as a smooth running oil well and you may be comfortable to engage a conveyancer at a low cost.

However, like the need for an experienced oil well fire fighter when there is an oil well blowout or fire, you need an experienced property lawyer to help you quickly and effectively navigate the hazards.

An experienced property lawyer can be that safe pair of hands when navigating the often highly specialised and hazardous property sector. I am keen to get the thoughts of anyone this strikes a chord with.