Pre-Purchase – Due Diligence:
The purchase of a home or investment property is a joint effort between you and your lawyer. There are aspects of the property and the deal that only you are able to check and there are other matters which are in the domain of the lawyer to investigate and advise.
You should check the property for the following:
- Measurements – you should measure the dimensions of the property and compare them to what is disclosed on the plan of subdivision;
- Encroachments – you should check that the buildings and improvements have not been built over any boundaries and conversely you should also check that no neighbouring buildings have been built on the prospective land;
- Breach of Easement – you should ensure that no permanent or unapproved structures have been built over any registered or unregistered easements. Registered easements are easier to locate whereas unregistered easements will require a closer analysis of the title search, property certificates and the property itself;
- Condition of the Improvements and Fixtures – you should inspect the building and fixtures closely to ensure that their quality is consistent with what you expect. The operation of appliances should be tested to ensure that they are fully operational. Similarly, the structure of the improvements should be inspected to ensure that the property is structurally sound and free of pests.
- Trees and vegetation – which may be subject to planning controls or local laws.
Contract of Sale
At this stage, we can review the contract and vendor statement and advise you in relation to:
- the risks of entering into the transaction;
- the location of registered and unregistered easements, and encumbrances affecting the land such as restrictive covenants;
- planning restrictions and overlays and the development possibilities of the land;
- how to structure your offer to best suit your circumstances. This may include a consideration of whether you make your purchase subject to finance or building/pest inspection;
- the conditions of the contract and the allocation of risk between you and the seller. Sometimes the contract contains conditions which may be unfair, unrealistic or just unusual. We can advise you and assist you to negotiate amendments if necessary.
- the Manner of Holding of the title to your property. You are able to hold the title to your property in a number of ways including, but not limited to personally, or via a company or trust structure. We are able to advise you about which structure would best suit your circumstance. We can also advise you in relation to nominating a substitute purchaser or in relation to varying the percentage of ownership in the property.
Before you sign the land purchase contract, it is important that you have investigated how you will pay for the property! Ideally you will already have secured finance or at the least you should have started on the path to securing finance.
Finance Pre-Approval: A loan pre-approval will give you an indication of how much you will be able to borrow from your bank. It is advisable that you obtain a loan pre-approval prior to making your offer to purchase. A pre-approval will give you the confidence to make your offer.
Formal Loan Approval: After your offer to purchase is accepted, your loan pre-approval can be converted to a formal loan approval. The approval can be unconditional or conditional on certain events – for example a valuation of the purchased property.
After you Sign the Contract of Sale
- Title Searches and Property Certificates: After you sign the Contract we will order title searches and property certificates for the property you have purchased and we will check them against the certificates supplied in the vendor statement. We will also advise you in relation to the information revealed by the title search and property certificates.
- Lodge a Purchasers’s Caveat: After you sign the Contract, it is recommended that you lodge a caveat to protection your interests. This may not be appropriate in all circumstances and we will advise you if there is any restriction in doing so.
- Contact your bank: After you sign your Contract you will have to contact your bank in order to finalise your finance arrangements, so your bank is ready in time for settlement. We will also remain in contact with your bank to ensure that they are provided with all the required documents.
- Verification of Identity (VOI): We are required to verify the identity of all the parties that we represent in a land transaction. You can complete the VOI check in our office, or you can attend an Australia Post outlet, or use our VOI agent – who can attend your home or workplace to complete same.
- Client Authorisation: Modern conveyancing practice requires us to sign transfer and other documents on your behalf. You will authorise us to act in this regard by signing a client authorisation form.
- State Revenue Office – Duties online form: We will prepare the purchaser’s section of the duties online form and you will check the answers and sign same. At this point, we will arrange to claim the duty concessions that may be available to you. We may be able to recommend an ownership structure that could reduce your duty liability.
- Statement of Adjustments: As settlement approaches, we will ensure that all adjustable rates (ie- council, water rates, owners corporation fees etc,) are adjusted as at the settlement date to ensure that each party pays their fair share of rates.
- Co-ordinate settlement with your bank: Settlement will occur electronically on the PEXA platform. We will co-ordinate settlement of your purchase with your bank and with the Vendor’s representative.
- Post Settlement: following settlement, we will notify council, the water authority and the owners corporation manager (if relevant,) that settlement has occurred and that you are the new owner of the property.
If you need any assistance contact one of our lawyers at [email protected] or call 03 9613 6555 for a no-obligation discussion and for expert legal advice.