Q.
In a residential tenancy agreement, can I ask my agent to prepare the agreement instead of going to the lawyer?
A.
IF (and only IF) an agent were to help type out the agreement, he cannot charge the preparation as professional service. There is no provision for estate agent to charge professional fee on writing up contracts. He can only say, he helps to type out some form of template, and claim it under other charges or disbursements.
Strictly in law, the agreement is in fact prepared by either party or both parties coming to contract. Indeed, in most cases, the drafted tenancy agreement is given to both parties to edit, insert or remove accordingly. The final agreed contract is indeed the result of preparation by both parties.
The agent only facilitated the typing and photocopying of the agreement - administrative role. If it is asked to be stamped, the agent can do so. All that work is later charged under disbursement. Meaning, the running around, stationary and minor administration work. The contract is entirely prepared by the parties of the contract. Any mistake, if found at later stage is also to be accountable by both parties to the contract, not that of the agent.
Legal Profession Act, 1976 has S.37 (2) in particular mentioned about this issue:
Section 37 of the Act prohibits unauthorised persons from acting as solicitor or advocate and disallows them from preparing documents related to any legal proceedings.
In particular,
S.37 2)a
draws or prepares any document or instruments relating to any immovable property or ...
And,
If such act of preparing for the document is done without charges, it has to be proven at no gain or reward:
"shall, unless he proves that the act was not done for or in expectation of any fee, gain or reward, be guilty of an offence under this subsection."
Hence, an agent should not draft or prepare agreement of contract for clients which is in contravention of the LPA 1976.