Conveyancing is the legal process by which ownership of real estate is transferred from one person to another. This involves preparation of legal documents including a contract for sale and transfer document which are signed by both parties, searches carried out on the property and the provision of legal advice on the contract for sale.
A solicitor is a person who is trained to advise clients on their legal rights and obligations in a variety of circumstances, including the buying and selling of real estate and the conveyancing process.
A conveyancer is a person who is licensed to assist buyers and sellers of real estate through the conveyancing process, but cannot advise on areas of law that are beyond “conveyancing work” as defined in legislation enacted in several Australian states.
At Ozpropertylaw, our solicitors manage each stage of the conveyancing process. If things go wrong during a conveyance, our solicitors are able to offer our clients legal advice in order to resolve the difficulties immediately. By contract a conveyancer may need to refer their clients to a solicitor if certain difficulties are encountered during the conveyancing process which they are not trained or qualified to deal with. It means that at Ozpropertylaw we have strong conveyancing knowledge and strong legal knowledge which together create an efficient, high quality and cost effective solution to our clients real estate needs.
We understand that it can be quite intimidating the first time you buy property. Professionals involved in the process, like real estate agents, solicitors and conveyancers all seem to speak an exclusive language and you have no idea what they are talking about. Don’t worry! First home buyers form a large number of Ozpropertylaw’s clients. We will demystify the language for you and take you ‘by the hand’ through the conveyancing process.
We will provide you with legal advice about the contract and your rights/obligations in terms you can understand. You can review our legal advice at your leisure as we provide it in writing by email and you can then send us any questions you may have. We will respond to your questions in detail and when you are comfortable we will take the process forward.
Please be aware that most State/Territory governments have a range of incentives to assist first home buyers. We suggest you search online for the first home owner’s grant in your State/Territory to see what’s on offer. Also, you may be eligible to apply for a reduction in stamp or transfer duty. Again, we suggest you search online for the assistance available in your State/Territory. Usually your broker or lender also has information about the assistance available in your State/Territory.
Stamp duty (called transfer duty in Queensland, Tasmania and Western Australia) is a tax levied by all state and territory governments in Australia on the purchase of a property. It is paid by purchasers and it usually needs to be paid on or before the settlement date (see What is settlement?) of your property purchase. In Tasmania, you have up to 3 months after settlement to pay transfer duty.
The rate of duty you will pay is linked to the value or purchase price of the property. The revenue office is each state or territory administers stamp or transfer duty and offers a calculator for assessing what it will cost on a particular property.
There are also stamp duty or transfer duty concessions available in some states and territories for first home buyers or for properties below certain thresholds. Please refer to the following links:
Your OzPropertyLaw solicitor will assist you in calculating the amount of stamp duty or transfer duty to be paid and when it needs to be paid during the conveyancing process.
When property transfers are being carried out between close relatives (spouses, siblings, parents and children) it is not always necessary to go through the full conveyancing process. In most cases it is unnecessary to draw up a contract for sale; instead a property valuation report is done and the transfer is made based on the value stated in that report. Ozpropertylaw can usually complete the process for you at a national office on 1300 136 386 for more information about this service.
We can assist you with buying property in your SMSF. During our registration process, please select the option that you are buying the property in your SMSF and register the purchase. We will then contact you to ask you any further specific questions we may have and also ask you to provide us with a copy of the fund’s trust deed.
Auctions can be both exciting and intimidating events to attend, particularly if you have your heart set on being the successful bidder. At OzPropertyLaw.com® we can help you prepare for the auction of the property you want by reviewing the Contract for you prior to the auction.
When purchasing a property at an auction you do not have a ‘cooling off period’ and are immediately locked into the contract. Prior to bidding at the auction please ensure that you have obtained pest and building reports, together with any other pre-purchase purchase reports (eg. swimming pool, electrical reports etc). You should also ensure that you have written unconditional loan approval from your lender.
Should you not proceed to purchase the property after the auction you are at risk of losing your 10% the deposit. The seller also has rights to sue you for the loss of you not completing the contract and if it can be proved this amount exceeded 10% of the purchase price you may be in a position where you can lose more than this amount.
If we get the contract preferably 48 hours prior to the auction day, we can review it and let you have our written legal advice before the auction. Please call us on 1300 138 386 to discuss the cost of this service as it depends upon the complexity of the Contract.
Buying “off-the-plan” means buying land or an apartment that does not yet exist other than as a drawing on a proposed plan.
Imagine a large paddock surrounded by a single fence. The owner would like to divide the land into small lots and sell them off, but he may not have enough money to do this, and he may not be sure that people will want to buy them.
To minimise his risk, the landowner can “sell” the blocks first, and then divide them up later. This is done by entering into contracts with potential buyers on the basis that the landowner (seller/vendor company) will do its best to sub-divide the land, and if it is successful the sale will be completed. Usually, the vendor has a limited time (from 18 months to 3 years) to have the land sub-divided. If the land cannot be sub-divided within the time specified in the contracts, the contracts can be cancelled, and the purchasers will get their deposits back.
The vendor has plans prepared, showing the paddock divided into smaller lots. Potential purchasers select lots as depicted in the plans, and if everything goes well the purchasers will receive individual titles for the blocks of land they have chosen on settlement.
The situation is the same with unit developments. Building works may not have commenced, but purchasers can enter into contracts to purchase units, chosen by reference to plans of the proposed buildings.
In most States/Territories, if you are selling a residential property you must have a Contract prepared before your property is placed on the market for sale. The Contract must contain prescribed documents as set down in legislation.
If you are able to locate the Contract from when you purchased the property this could save time and costs involved. It can take up to two weeks to receive some searches. If you are able to provide some of these documents from when you purchased the property, we are able to have a contract available on the same day.
Please provide the details of your property (address, names of all owners).
Once the contract for sale has been prepared we will submit the Contract to an agent of your choice or to you directly should you wish to privately market the property.
The contract is an important legal document, which sets out information about the property you are buying/selling and also sets out the terms on which you are willing to buy/sell the property. Legislation in each State requires certain documents to be attached to and form part of the contract.
There are two of us buying the property. How should we buy it?
You must decide whether you are buying as joint tenants or tenants in common.
As joint tenants you buy the whole property as one. This normally occurs on the purchase of your home. There is no actual share and if one of you should die, the property passes to the survivor/s.
As tenants in common, you own an actual share. It can be more or less than 50%, and that share will pass on death in accordance with each person’s will.
The “Cooling off” period is the period of time during which the purchaser of real estate is allowed to cancel the contract and walk away from the purchase on a “no questions asked” basis. In some States the seller/vendor may retain a small portion of the deposit you have paid.
In some States you may be asked to waive (give up) your cooling off rights, that is, be locked into the contract immediately following exchange of contracts and not be able to change your mind. To do this you will be asked to provide a certificate that is signed by your solicitor/conveyancer to say that you are prepared to give up this right. The cooling off period is designed for you to obtain legal advice on the contract and negotiate any changes you require. Your Ozpropertylaw solicitor will ensure that you only waive the cooling off period when it is safe to do so.
This is when the separate contracts signed by the seller/vendor and by the buyer/purchaser are checked to make sure they are identical, then “swapped” and dated. At this point they become legally binding, in other words, you are legally required to sell/buy the property and the seller/vendor can no longer market the property or accept any other offers. However, depending upon whether you are selling at auction or by private treaty, the buyer may have a number of days “cooling-off” period in which the buyer could change his or her mind and withdraw the contract.
It is essential that this process is fully discussed with you and that you are aware of all the implications, particularly if you are also looking to buy an alternative property. At Ozpropertylaw we will ensure that you make an informed decision.
Usually the deposit is payable by bank or personal cheque to the real estate agent, however the contract may specify otherwise. Ozpropertylaw will advise you on this process.
This applies to Queensland and Victorian contracts and it means that the dates by which the buyers had to have their finance approved and satisfactory pest and building inspections have been reached. Once the buyer’s solicitors have informed the seller’s solicitors that is the case, then the contracts are declared unconditional. At this point the contracts become legally binding; in other words, you are legally required to sell/buy the property.
If you need to obtain an extension to the finance date or the inspections date we can usually obtain that for you. Just let your Ozpropertylaw solicitor know that you need an extension.
Settlement is the finalisation of the sale or purchase process. A representative of each solicitor/conveyancer and of the lender for both the seller and the buyer is usually present. Cheques are exchanged for the Certificate of Title and ‘discharge of mortgage’ (if applicable). The buyer’s bank then registers the change of title and mortgage, and notifies authorities (such as the water company) of the change. Once the change of title is registered, ownership of the property is considered to be transferred.
It’s important to ensure that there is sufficient time between the contracts being declared unconditional (Queensland and Victoria) or the exchange of contracts (ACT, NSW, Tasmania and SA) and the date for settlement. This is because most lenders require at least 3 weeks to organise the documentation required for your loan. In WA you can also conduct inspections and enquiries up until settlement and so you need to allow time to get your reports/searches back. You don’t want to be paying penalty interest to the seller/vendor just because you didn’t allow enough time before settlement.
The seller/vendor or buyer/purchaser can issue a ‘Notice to Complete’ which means the vendor or purchaser usually has 14 days (including weekends and public holidays) to settle the sale/purchase. If left unsettled, the purchaser has the right to terminate the contract and is eligible to receive their deposit back. The purchaser may also apply to a court to have the vendor ordered to complete the agreement and hand over possession.
The vendor is entitled to charge the purchaser interest for the number of days that the settlement is delayed. The contract usually stipulates the applicable interest rate. When a ‘Notice to Complete’ is issued, the vendor may terminate the contract usually after the 14 days has expired and keep the deposit, and can legally place the property back on the market for sale. The seller/vendor may then claim against the buyer/purchaser any shortfall in the sale proceeds.
Keys are usually collected from the real estate agent after settlement. Your Ozpropertylaw solicitor will inform you where to collect the keys.
If you are ready to begin the conveyancing process go to the BUYING or SELLING tab on the left hand navigation bar of the home page. When you click the “Yes I want to Register” button, you will be guided through a short form where you fill out your contact details and the details of the property. You only need to know the address of the property you are buying or selling as we will find out the technical title details after registration. Once those details are provided to us and we will immediately start work on your conveyance.
When you click the “Yes I want to Register” button at the bottom of your quote page, you will be guided through a short form where you fill out your details and the details of the property. Once you have completed the details and made your initial payment, your personal web page is immediately created. We will provide you with a unique login which ensures that your privacy is protected. You will have instant access to preliminary information about the process of buying a property in your state/territory. You will also have instant access to our preliminary advice about the contract for sale and about property purchases and the GST. You will also receive a welcome email which includes the contact details of the solicitor who will be responsible for all work on your property purchase.
Once we receive the contract from you or the real estate agent, we will upload a copy to your web page and email you our specific legal advice on the contract. We will then liaise with you about whether you would like to make any changes to the terms of the contract.
When you click the “Yes I want to Register” button at the bottom of your quote page, you will be guided through a short form where you fill out your contact details and the details of the property. Once you have completed the details and made your initial payment, your personal web page is immediately created. We will provide you with a unique login which ensures that your privacy is protected. You will have instant access to preliminary information about the process of selling a property in your state/territory. You will also receive a welcome email which will include the details of the solicitor who will be responsible for all work on your property sale.
We will immediately begin to prepare the contract for sale. Depending on the search documents we need from other bodies (eg council, body corporate), this can take from 1 to 14 business days. Once completed, we will forward a copy of the contract directly to your chosen agent (or to you, if you are marketing your property privately).
All documents are provided instantaneously to you via your web page. We can also mail or email them to you at your request. If we need an original document signed, we will notify you by email and ask you to download it from your web page, sign it and then send it to us by express post. This is often faster than making an appointment to attend a solicitor’s or conveyancer’s office and is certainly more convenient for our busy clients.
Solicitors looking after your property purchase at every stage of the conveyancing process;
– Obtaining all searches that are listed in our quote;
– Contract and conveyancing work including:
Preparing legal advice for you on the contract;
Explaining to you any terms of the contract or the process that you do not understand;
Conducting negotiations with the vendor/seller on terms of the contract;
Exchanging the contract with the vendor/seller;
Advising you on meeting the requirements so that the contract is declared “unconditional” (Queensland); and
Liaising with the lender in relation to pre-settlement requirements.
– Preparations for settlement including:
Obtaining searches/enquiries required for settlement;
Booking settlement attendance with the lender or bank;
Preparation of settlement figures so that you know who is paid and how much they are paid;
Attending settlement on your behalf in person or via an agent; and
Providing you with post-settlement reporting on the settlement process and follow up on any outstanding matters arising from the conveyancing work.
– Administrative costs such as legal stationery, phone calls, postage, photocopying and scanning; and
– The Goods and Services Tax (GST) payable on our fees.
Our fixed professional fee is the value of work we do for a conveyance that proceeds ‘normally’. Complications can sometimes arise. These may require extra work, which no one can anticipate. We may have to charge extra fees to cover the extra work. We will inform you if that happens, and explain what has to be done, and at what cost.
We also note that building and pest inspection reports are not included in our fees, as some clients have already had them conducted and others do not require them. We like to give you the option.
Fees for settling with PEXA are also additional to our fixed fee.
Some examples of extra work include dealing with protracted negotiations over contract terms; drafting unusual clauses; resolving disputes over property defects; buyer’s early occupation under licence; problems with implied warranties and terms; problems with tenants, problems with commission disputes with agents; dealing with unusual mortgage requirements, government fees for registration of title and arranging registration of title, buyer’s default, issuing or receiving a notice to complete; dealing with work notices from council; problems with building certificates; negotiations for extensions of time; disputes about payout figures; disputes about inclusions and exclusions; disputes about vacant possession; disputes about title defects; registration of title for cash purchasers; and litigation.
Disbursements include searches conducted over the property to ensure that the property is cleared from all outstanding charges and that a buyer’s future legal ownership is not affected by any notices or work orders issued by the local council.
Disbursements will vary depending on the type of property and location. Rural properties tend to attract higher disbursements then a residential property as a greater number of enquiries must be made.
Yes, we offer a full settlement agent service in WA.
Agency Agreement – The agreement between the agent and the owner/seller for the marketing of a property detailing the terms of the agreement and the fees payable to the agent.
Auction – A public sale in which a property is sold to the highest bidder.
Bank Cheque – A cheque issued by a bank. The bank guarantees payment and it may take up to 3 days to clear.
Body Corporate – see Owner’s Corporation.
Breach of Contract – When one party breaks one or more conditions of a contract.
Bridging Finance – Finance obtained over a short period as a prelude to long term funding usually between buying a property and selling your existing property.
Building Regulations – Rules of a legal or statutory nature, which control the manner and quality of building in an area ensuring public safety and minimum standards of construction.
Caveat – a legal notice lodged with the land titles office to prevent transactions such as transfer of the title, mortgage or lease on the title until the claim of the caveator is determined.
Certificate of Title – A document issued by the land titles office showing the owner, mortgagees and other encumbrances of land.
Chattels – Property other than the real estate such as furniture and other moveable items that may or may not be included in the sale.
Commission – The fee payable to an agent for services rendered as agreed in the agency agreement.
Common Property – Areas available for use by all unit owners, such as stairwells or driveways in a block of units.
Completion – see Settlement.
Contract for Sale – A written agreement, which sets out the terms and conditions of a sale. The contract contains a description of the property, the inclusions and the conditions of sale.
Cooling Off – A period usually of 5 business days allowed after exchange of contracts in which the buyer/purchaser may cancel or rescind the contract.
Covenant – An agreement on a title creating an obligation to adhere to certain terms, conditions or restrictions regarding a property.
Easement – A right annexed to the land in the ownership of one person concerning the user of the land in the ownership of another eg. a right of way.
Exclusions – Items that do not form part of the sale.
Fixtures – Items such as built-in cupboards, bath, stove etc that cannot be removed without causing damage to the property.
Final Inspection – An inspection made by the purchaser prior to settlement taking place, to establish that the property is in the same state of condition as it was when contracts were exchanged.
Gazumping – Withdrawal by a seller/vendor from any agreement with the purchaser to sell property at a specified price, in order to accept a higher offer. This is done prior to entering into any legally binding contract.
Joint Tenants – Joint tenancy is the holding of property by two or more people concurrently. If one person dies his/her share passes to the survivor.
Land Tax – A state government tax payable by some owners of property based on the value of the property.
Mortgage – A legal document which expresses the terms and conditions of the lending of money secured over real estate.
Mortgagee – The person who lends the money.
Mortgagor – The person who borrows the money.
Owner’s Corporation – The owners of the lots from time to time in a strata scheme constitute the owner’s corporation which has the broad function of managing the building.
Repudiation – Where one party terminates because of the other party’s failure to comply with the contract. Upon this happening, normally the deposit is forfeited to the Vendor/seller.
Rescission of Contract – The election of one party to cancel the contract due to the other party failing to disclose certain matters or failing to comply with the contract where the deposit is refunded and the property released from the contract.
Registration of Title – After you have purchased the property, your bank or lender will register the title in your name and note its interest by way of mortgage on the title. If you are not borrowing any money to purchase the property, you will need to arrange registration of the title in your name and pay government fees for registration. This is not included in our fixed conveyancing fee, but we can arrange it for you for a small additional charge (recommended) or you may prefer to arrange it yourself.
Settlement – The finalising of the sale where the balance of monies is paid over and possession and title is transferred to the buyer.
Survey – A survey identifies buildings erected upon the land, the distance of those buildings from the boundaries, whether the buildings on the land are built on the neighbouring properties or the neighbouring properties are built on the land and whether the fencing is on the boundaries.
Tenants in common – The holding by two or more people of a property in equal or unequal shares. Each party may sell his/her own share independently of the others and title does not automatically pass to the survivor upon death as it does in joint tenancy.
Vendor – “seller”.
Zoning – Statutory description of the allowable uses of land as set out by the local planning instrument and/or regional environmental planning instrument.
We experienced a very drawn out purchase, however this was not the fault of Ozpropertylaw. We were kept informed and always received a helpful response when a phone call was necessary.