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Solicitors’ Certificates

Why do I need independent legal advice? Understanding solicitors’ certificates in property and lending transactions

If you’re buying property, acting as a guarantor or entering into certain loan arrangements, you may have been told that you need to obtain independent legal advice and have a solicitor sign a certificate before your transaction can proceed. For many people, this comes as an unexpected step (and an unexpected cost) late in the process. Here’s why it’s required and why it isn’t simply a box-ticking exercise.

What is a solicitors’ certificate?

A solicitors’ certificate is a formal document in which an independent solicitor confirms that:

  • They have explained the relevant document (such as a guarantee, mortgage or loan agreement) to you in plain terms

     

  • You appeared to understand the nature and effect of what you were signing, including the risks involved

     

  • The solicitor believed you were acting freely, without pressure from another party to the transaction.

The certificate is usually required by a bank, lender or another party to the transaction, most commonly where:

  • You are acting as a guarantor (for example, a parent guaranteeing their adult child’s home loan)

  • There is a power imbalance between the parties (such as a family or personal relationship where one party may be more vulnerable to pressure than the other)
  • The lender’s terms require it as a condition of approving finance (particularly for non-standard loan structures)

     

  • You are entering a transaction on someone else’s advice or recommendation, and a third party wants assurance that you have independently turned your mind to the obligations you are taking on.

Why is this step required?

The requirement exists to protect parties from entering into significant financial commitments without properly understanding what they are agreeing to, in circumstances where there is a genuine risk of undue influence, that is, influence beyond what is ordinarily expected between parties to a close relationship.

Courts have, on a number of occasions, set aside guarantees and mortgages where a party was found not to have received genuinely independent advice. For lenders, obtaining a solicitors’ certificate is one of the principal ways they protect themselves against a transaction later being challenged or unwound on that basis.

Why can it be costly?

You may be surprised that a seemingly short meeting and a one-page certificate can carry a substantial fee. A few reasons for this:

  • The advice must be genuinely independent and properly documented. A solicitor cannot simply sign a certificate – they must turn their mind to the relevant documents, form a considered view as to your understanding of them, and keep a file note evidencing that the advice was actually given.

  • Personal liability attaches to the certificate. By signing, the solicitor is putting their own professional judgment (and their professional indemnity insurance) behind the confirmation. This is not a task we treat lightly, regardless of how routine the underlying documents may appear.
  • The documents often require careful review beforehand, particularly where guarantee or loan terms are unusual or where the transaction structure is more complex than a standard purchase.

  • These certificates are frequently required under time pressure, at short notice and close to settlement, which can also affect the fee for turning the work around.

Our fees

  • Standard solicitors’ certificate: $1,250 (incl. GST) per certificate

  • Same-day/priority certificates (standard certificates only): an additional $250 expediting fee, provided all required documents and administrative materials are received by 10am that day*

*Same-day requests received after 10am cannot be guaranteed and will be assessed on a case-by-case basis, subject to availability. We reserve the right to decline a same-day request at our discretion, including where we are unable to accommodate it within the required time frame.

We are happy to discuss the likely fee upfront and, in some circumstances, may be able to accommodate particular concerns. However, this will depend on the nature of the matter. Contact us before your meeting if cost is an issue.

Where your matter is more complex than a standard certificate, we invite you to contact us in advance so the likely scope and fee can be discussed before your appointment.

Why an independent firm matters

Because the solicitor providing the certificate must be unconnected to the other parties in the transaction, your own conveyancer or the solicitor acting on the broader deal generally cannot provide this advice. Patten Robins regularly acts for clients of Coast to Coast Conveyancing and other referrers, as well as members of the public directly, providing genuinely independent advice with the benefit of already being familiar with how these transactions typically proceed.

Getting in touch

If you have been asked to obtain independent legal advice or a solicitors’ certificate as part of your transaction, contact Patten Robins Lawyers early. Turnaround times for these certificates are often tight, and early contact gives the best chance of the advice being arranged without delaying settlement.

This page is general in nature and does not constitute legal advice. You should seek advice specific to your own circumstances.

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