Conveyancing

Whether you are buying property for the first time, moving or securing an investment, you will appreciate that this can be an exciting but anxious time.

In addition to the practical aspects of moving house and changing location, you will need to deal with the formalities of securing or renegotiating a loan and ensuring that the house you inspect meets your expectations.

Purchasers need to know that there are no hidden surprises affecting title to the land or its improvements. For investors, the numbers need to stack up – a hidden defect could mean the difference between a solid investment and a liability.

Conveyancing is the process of transferring a property from one owner to the next. Unlike most legal processes the entire transaction takes place in a short timeframe. In a competitive market, purchasers often feel the pressure of securing a property with little information to go on or missing out altogether. This is where a competent lawyer is invaluable.

Our conveyancing team has transferred numerous properties from one owner to the next, negotiating contracts, resolving issues and ensuring that our clients are equipped to make informed decisions along the way.

PURCHASING

Typically, a purchase conveyance is a three-part process – finance and pre-purchase investigations, exchange of contracts, and settlement. A basic understanding of each phase with the guidance of a conveyancing expert will ensure your property purchase proceeds as smoothly as possible.

Finance, contract review and investigations

Fundamental to purchasing a property is being able to finance it. Pre-approved finance is critical, more so in a competitive market, and allows you to move forward confidently once you find a suitable property. Most loans are pre-approved subject to valuation after which a formal approval can be obtained.

Although you would have physically inspected the property, probably several times, the contract is the legal substance of your purchase – accordingly it deserves the undivided attention of your lawyer.

The contract sets out the legal description of the property and includes prescribed disclosure documents – typically a copy of the title and a plan of the land, details of interests over the land (easements and covenants), details of the planning scheme affecting the land, and details of outgoings.

The contract will also contain standard conditions regulating the rights and responsibilities of the vendor and purchaser. Additional conditions are almost always included by a vendor and should be scrutinised to ensure that they are not onerous.

Our expertise and familiarity with a standard land contract enables us to conduct an efficient yet thorough review. We will identify the property with you, go through any unusual terms and ensure that you are familiar with your obligations.

We will recommend additional investigations such as pest and building reports and Council enquiries to ensure that the property will meet your expectations and that you know exactly what you are buying.

Exchange of contracts

Once finance is approved and you are satisfied with the permitted use of the property as well as its physical attributes, contracts can be signed and exchanged. This is the formal process used to bind the parties to their negotiations and triggers the due settlement date. The deposit is also required at this stage which is usually held in trust by the vendor’s solicitor, until settlement or release under a special provision of the Sale of Land Act.

After contracts exchange, we will continue to investigate the property by ordering Government searches and enquiries. These provide details of land tax, rates (to be adjusted on settlement) and will reveal whether there are any interests in the property (for example, road widening) that would not be identifiable by reading the contract.

We will also liaise with your lender, providing further details regarding your purchase, and ascertain their further requirements to ensure that the borrowed funds will be available to complete your purchase.

During this time, you will need to arrange insurance to take place from the completion date.

Settlement

Technology now allows most settlements to occur through an electronic platform. The legal and bank representatives exchange the balance of the purchase price for the title deeds to the property electronically.

Prior to settlement you should organise a final inspection of the property with the selling agent to ensure that it is in the same condition as when you signed the contract.

The title your property will be registered with the Land Registry and control Is held by your lender if you have borrowed funds.

Preparing for your purchase is key to a smooth transaction. We encourage clients to contact us as soon as they start looking. We will do the necessary identity checks and establish a file so that we are ready to represent you as soon as you find that perfect property.

SELLING

Similarly, a selling conveyance is a three-part process – preparation and negotiation of a contract, exchange of contracts, and settlement. A basic understanding of each phase with the guidance of a conveyancing expert will ensure your property purchase proceeds as smoothly as possible.

Contract Preparation

Fundamental to selling a property is a binding contract.

The contract sets out the legal description of the property and includes prescribed disclosure documents – typically a copy of the title and a plan of the land, details of interests over the land (easements and covenants), details of the planning scheme affecting the land, and details of outgoings. If the disclosures are not made properly, a purchaser may be able to avoid the contract at any time before settlement.

The contract will also contain standard conditions regulating the rights and responsibilities of the vendor and purchaser. Additional conditions are almost always included by a vendor and should be prepared carefully to ensure that they protect you, the vendor, without being so onerous as to make the contract.

Our expertise and familiarity with a standard land contract enables us to efficiently prepare a contract which best protects your interests. We will identify the property with you, go through any unusual terms and ensure that you are familiar with your obligations.

We will recommend additional investigations such as pest and building reports and Council enquiries to ensure that the property will meet your expectations and that you know exactly what you are buying.

Exchange of contracts

Once finance is approved and you are satisfied with the permitted use of the property as well as its physical attributes, contracts can be signed and exchanged. This is the formal process used to bind the parties to their negotiations and triggers the due settlement date. The deposit is also required at this stage which is usually held in trust by the vendor’s solicitor, until settlement or release under a special provision of the Sale of Land Act.

After contracts exchange, we will continue to investigate the property by ordering Government searches and enquiries. These provide details of land tax, rates (to be adjusted on settlement) and will reveal whether there are any interests in the property (for example, road widening) that would not be identifiable by reading the contract.

We will also liaise with your lender, providing further details regarding your purchase, and ascertain their further requirements to ensure that the borrowed funds will be available to complete your purchase.

During this time, you will need to arrange insurance to take place from the completion date.

Settlement

Technology now allows most settlements to occur through an electronic platform. The legal and bank representatives exchange the balance of the purchase price for the title deeds to the property electronically.

Prior to settlement you should organise a final inspection of the property with the selling agent to ensure that it is in the same condition as when you signed the contract.

The title your property will be registered with the Land Registry and control Is held by your lender if you have borrowed funds.

Preparing for your purchase is key to a smooth transaction. We encourage clients to contact us as soon as they start looking. We will do the necessary identity checks and establish a file so that we are ready to represent you as soon as you find that perfect property.

Related Matters To Buying And Selling

Body Corporate

An Owners Corporation (formerly known as a Body Corporate) may also affect the property. Generally, Owners Corporations are created on a plan of subdivision which divided a parcel of land into lots and common property. The legal title to the lot, defined by the cubic airspace and the walls, ceilings and floor (often the inside of a unit or apartment and its balcony) is held outright by the owner who also holds an interest with other lot owners in common property such as stairways, lifts, gardens and swimming pools.

After purchasing a property affected by an Owners Corporation, the owner automatically becomes a member of the owners’ corporation, which is responsible for managing the strata scheme which involves arranging adequate insurance, repairs and maintenance, keeping records, and appointing managing agents.

Buying off the plan

Buying off the plan entails purchasing a property that has not yet been built or land which has not yet been separately titled. An off the plan purchase may not settle for two to three years after negotiations.

Off the Plan Contracts are usually lengthy and contain many conditions and variables such as a series of completion dates providing a buffer to allow vendors additional time to finish the project and complete the contract. The contract also allows for variances in design, size and finishes subject to permissible limits and often gives the developer significant flexibility.

Once the development is completed and the plan registered, purchasers usually have around two weeks to complete.

Auction

At an auction the person with the highest bid, subject to a reserve price, becomes the purchaser on the day of the auction and contracts are immediately exchanged and the 10% deposit is payable. The transaction then proceeds through the usual conveyancing steps.

Auctions are regulated by legislation and the agent conducting the auction must conduct the auction in accordance with the regulations.

If you need any assistance contact one of our lawyers at sjl@sjl.com.au or call 03 9613 6555 for a no-obligation discussion and for expert legal advice.