Conveyancing & Property Law

Conveyancing

Conveyancing is the area of property law that deals with the transfer of real estate between sellers and buyers. Although it seems quite straightforward, property law can be quite complex and conveyancing has to consider issues such as contract terms and conditions, mortgages, covenants, easements, caveats, the type of property title, the type of tenancy, local council regulations and zoning to name just a few.

What are the steps in the conveyancing process?
Generally the process begins with the drawing up of a Contract for Sale. The Contract will include things such as:

1. The purchaser needs to get legal advice, review the contract, arrange inspections and start making loan arrangements before anything is signed.

   • the street address and legal property title details

   • the length of time between signing and completion of the contract

   • what’s included or specifically excluded from the sale

   • special conditions specific to this particular property

2. The contract is signed by both parties and may be immediately binding, depending on the circumstances of the sale. You may, however, have a cooling off period available, or be able to withdraw from the contract under certain conditions, so it’s important that you know the exact terms and conditions written into the contract

3. There is a set length of time between the contract becoming binding and the contract being settled or completed. In this time the purchaser of the property has a lot to do including conducting various checks on the property, paying stamp duty, organising insurance and getting any loan arrangements in order, and the seller of the property should be making arrangements with their bank to have any mortgage discharged as well as making plans to move.

4. Before settlement, adjustments to the purchase price are agreed upon between the parties to cover council and water rates as well as other costs which may be allowed for in the contract.

5. On the day of settlement everything has to be in place. The purchaser or the incoming mortgagee has to show up with the funds, and the seller or outgoing mortgagee has to turn up with the property title and the document/s needed to release the mortgage. Everything is handed over including the keys and the property is considered settled.

6. After settlement the new owner needs to be registered as the owner on the title, and various government bodies need to be informed of the change in ownership.

As buying property is one of the biggest financial decisions you will make it’s important that you get expert advice. Legal expertise and diligence are well worth the cost.

Selling Property

The Contract
Once you’ve made the decision to sell your property, one of the first tasks is to have the Contract for Sale of Land drawn up.

The contract will include not only the legal terms and conditions of sale, but will also specify what items are included or excluded from the sale, and any other special requirements you might have a longer or shorter settlement than usual, or perhaps that the contract be conditional upon another contract for you to buy/sell another property. There are a lot of ways that a contract can be varied, so it’s important to discuss your situation in detail with your lawyer/conveyancer.

You also need to know your disclosure responsibilities, as failing to disclose certain things can lead you into a lot of trouble.

The Deposit
Once a purchaser has been found and the contract has been signed and is legally binding, then a deposit is usually paid by the purchaser and is usually held in the trust account of the selling agent.

Settlement
Settlement (the day that the money is exchanged for the property and keys handed over) is scheduled in accordance with the contract and is usually 6 weeks after signing contracts. During the wait for settlement, your lawyer/conveyancer will liaise with your bank in relation to releasing any mortgage held on the property. In this time you should arrange disconnection of electricity and other services.

Before settlement, the purchase price will be adjusted to reflect the council rates, water rates and strata fees that need to be shared between the parties. There may be other adjustments, based on the Contract for Sale.

Once settlement takes place, the real estate agent will be authorised to release the deposit to you, less their fees.

Buying Property

Buying a home is one of the most stressful and expensive things you will ever do. It’s vital that you seek legal advice from someone experienced in property law and who knows the area.

Before You Start
The first round of decisions you will likely need to make is in regard to finance. Make sure you read everything thoroughly, from the pre-contractual statement which outlines the fees and charges to which you’ll be subject to the actual mortgage contract itself. Remember you are entitled to legal advice and are under no obligation to sign anything on the spot.

Pre-purchase Inspections
Once you have found a property you like, you will need to arrange a pre-purchase building inspection report and perhaps a pest inspection report. These are written reports about the condition of the property and helps you find out any potentially costly problems. You may be able to use this information to negotiate a reduction in the purchase price. If you’re not sure who to trust to do this inspection, talk to your lawyer. They will be well aware of which inspectors are worth hiring.

Making an Offer
If you’re happy to proceed, you can make an offer. You might be asked to pay a small sum as an initial deposit, but this is fully refundable if you don’t end up signing the contract. It does not mean that the property is yours yet either, as the agent can take other offers.

Signing the Contract
If your offer is accepted then take the contract you’ve been given to your lawyer/conveyancer and discuss your situation with them. There may be several things that can be negotiated in your favour, and you need to be absolutely clear on your rights and responsibilities before signing.

When you do sign the contract you will need to pay the 10% deposit, unless your lawyer/conveyancer has negotiated a special condition otherwise. This is held with the real estate agent and is released to the seller after the property is settled. If you don’t have 10% available your lawyer/conveyancer can advise in regard to getting a deposit guarantee in lieu of the cash.

Settlement
After the contract has become binding, your lawyer/conveyancer has a number of tasks to perform including:

• Arranging payment of stamp duty

• Liaising with the lender in regard to the mortgage

• Checking with various government authorities to see if they have a vested interest in the property

• Checking to see if there are any outstanding debts to local council

• Calculating adjustments for council, water and strata rates

• Making final checks on the title

The settlement is electronic and does not involve a meeting between lawyers.

Real Estate Contracts

Whether you are buying a new home or selling an investment property we can help you with the Contract for Sale.

If you’re selling, we can make sure that we draw up a contract that works for you and your particular requirements. We’ll arrange all of the necessary documentation and liaise with your agent in regard to auctions or purchase enquiries.

If you’re purchasing we will scour the contract to make sure that there are no hidden conditions that will act against your needs, and negotiate to make sure that the contract is fair and suits your needs.

Different situations have different requirements, but we can assist with Contracts of Sale for:

• residential purchases

• auctions

• off the plan purchases

• strata units and apartments

• rural property

• commercial property

• vacant land

Conveyancing links (Victoria)