Why You Should Be Represented By A Lawyer In A Property Transaction
I have come across many enquiries from potential clients asking if they could do away with a lawyer in a property transaction. More often than not, the reason for not wanting to engage a lawyer to represent them is due to the myth that you only need one lawyer to prepare the Sale & Purchase Agreement for both parties to sign. Indeed, it is a myth and has serious implications to the parties. In most cases, if not all, the parties are unaware that they should be represented by a lawyer in a property transaction. These are good reasons why you should be represented by a lawyer in a property transaction.
A Lawyer Cannot Act For Both Parties
Section 7(1) of the Solicitors Remuneration Order 2006 states that a solicitor may not act for more than one party in a particular transaction subject to some exceptions. It is commonly held that the party which the lawyer bills would be the party to whom the lawyer is representing. Though the other party may, by mutual agreement, contribute towards the paying of the bill, ultimately the lawyer is answerable only to the party whom he issues the bill to. Acting for a party is to be distinguished from the mere act of preparing miscellaneous documents, filing and / or witnessing the signature of the other party where there are no conflict of interests involved.
Protection Against Unfair Terms
Quite apart from the fact that under the law a lawyer cannot act for both parties in a property transaction, having a lawyer protects the client against unfair terms being drafted into the agreement. The lawyer is expected to explain all the terms drafted and the consequences of the terms so that the client would be fully informed of what he is getting himself into when he ultimately signs the agreement. Most agreements are drafted with legal jargons and it can be bewildering to the man on the street what these terms mean. For instance, it is common place to use the word “Consideration” in a property transaction which actually means “some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other” (Currie v Misa [1875] LR 10 Ex 153). In a sale and purchase transaction of a house, one party is willing to give away his house in return for monies being paid by the other. The “consideration” is the money for the house. Read more
Pros and Cons of Accelerating the Payout of Structured Settlements
In certain jurisdictions such as the United States (but less common in Malaysia), settlements for claims involving personal injury, workers compensation, guardianship, wrongful death lawsuits and even product liability may involve what is known as structured settlement. A structured settlement is basically an arrangement whereby the claimant get tax-free payment over an agreed period of time rather than getting the full payment in one lump sum upon settlement of their claim. This structured settlement is sometimes called annuity payment though the latter is usually subject to tax.
There are companies out there which now offer the claimant an option to sell their structured settlement for a lump sum payment instead and thus, accelerating the payment. This can be done as a one lump sum payment or partial lump sum payment (eg. you only opt to cash out half of your total structured settlement sum).
One of the advantages with such an accelerated payment is the perceived rigidity associated with structured settlement. The time factor (of having to wait) for the monies to be paid is one. Moreover, it would not be possible to add an additional beneficiary to the payee unless a court order is obtained (for obvious reasons). Another advantage of accelerated payment would be to cater for opportunity cost. The claimant may be able to use the accelerated payment to invest in certain investment vehicles which may give him better returns over the same period of time connected to the structured settlement. Read more