June 13, 2016

Property

Broken home
Lake Street Lawyers offer a wide range of services in Conveyancing including:

  • Standard Conveyancing
  • Complex Conveyancing – Commercial properties, Farming land, Onsales, etc.
  • Section 32s and contracts
  • Auction sale contracts
  • Off the Plan sales & purchases
  • Property & Building Contract advice
  • Retirement Village transactions
  • Subdivisions
  • Related party property transfers

FAQs


Conveyancing – general

What is Conveyancing?

Conveyancing is the legal process involved in the sale or purchase of a house, unit, commercial premises or vacant land.

What is the difference between using a Solicitor and a Conveyancer?

Conveyancers and Solicitors are both capable of handling a Conveyancing transaction. Conveyancers are trained in the step by step process of the transfer only, whereas Solicitors are trained and knowledgeable in property law in general and so can offer additional services such as Contract advice and can deal with problems arising from the transaction which is something that Conveyancers cannot legally do.
With a purchase or sale of a house being most people’s single largest financial transaction in their lives it pays to have a solicitor onboard to handle any potential problems should they arise.

What are adjustments?

Adjustments are an apportionment of the rates, taxes and outgoings between the Vendor and Purchaser. Adjustments are made to ensure that the Vendor pays their portion as to the date of settlement (or date detailed in the Contract) and then the Purchaser assumes liability for the remaining portion.

What about subdivisions?

A subdivision is when a larger block or apportionment of land is split into two or more individual blocks. They are often vacant land but they can contain established or newly built dwellings. Buying a subdivision property means waiting for the subdivision process to be completed before being able to settle on the property. This can take some time and is often delayed. New estates usually sell land this way.

What is an Off the Plan Purchase?

If a property is being sold Off the Plan it means that, at the time of the Contract being signed, the dwelling on the land is either about to be built or is in the process of being built. There are advantages and disadvantages to this type of purchase. On the plus side you receive a stamp duty reduction based on the stage the building is at at the time of signing the Contract. On the negative side, you cannot inspect the property at signing time and have to rely on plans and lists of inclusions included in the Contract.

What does Clear Title mean?

If a property is said to have Clear Title, it means that there is no mortgage affecting the property and the vendor or vendor’s representative holds the original Title in their possession.

Can I sell my old property and purchase a new one and have settlement on the same day?

This is achievable and happens quite a bit. There is increased risk of settlement not occurring on the chosen date however as there are many more parties involved including banks and so much more potential for someone not to be ready for settlement.


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Couple house

Purchases

I’m going to sign a Contract of Sale, what should I do to protect my interests?

It is advisable to see a Solicitor prior to signing to have them go through the Contract and give you advice in detail. The Solicitor will also give you some ideas as to additional Special Conditions to include in the Contract to protect your interests further.
If applying for finance, it is a good idea to put a “subject to finance approval” Special Condition into the Contract as this will allow you to cancel the Contract if you cannot obtain finance. (Be aware that the cooling off period and “subject to finance” are not available when the property is bought at auction).
We highly recommend putting a Special Condition in the Contract stating that all fixtures and fittings be “in working order”. This is so that, for example, if a heater is found not to be working at the final inspection the vendor will need to have it fixed prior to settlement at the vendor’s cost.
You may also wish to put in a Special Condition allowing for building and pest inspections to be conducted to your satisfaction.

When does the cooling off period run out?

The cooling off period runs out three clear business days after the purchaser signs the Contract. So if you sign on a Saturday, you have until the close of business the following Wednesday to pull out of the Contract. It is very important that you advise the vendor’s solicitor or the real estate agent in writing that you are pulling out.
Also be aware that properties bought at auction do not have a cooling off period and the vendor does not get to cool off.

What does “and/or nominees” mean?

You can put “and/or nominees” in the Contract to allow you the option to nominate another person to purchase the property as well as or instead of you. For instance, if you sign the Contract but your partner is not available at that time, you can nominate them to purchase along with you. You will need to notify your Solicitor as to your intention to nominate so they can prepare the necessary forms for settlement.

What do I need to do?

After the Contract has been signed your main priority is to organise your finance, be that through a bank, a broker or if you have clear funds, making sure they will be available at settlement time. You will also need to take out insurance on the property and arrange for electricity, gas and phone connections prior to settlement (where applicable). Also, a final inspection will need to be arranged with the agent.

What can I expect at the final inspection?

The property is expected to be in the same condition as when you first inspected the property allowing for fair wear and tear. If there is a hole in the wall when you signed the Contract, there is no obligation on the vendor to have it fixed and no obligation for them to spruce the place up before settlement, steam cleaning the carpets for example. They are however obligated to keep lawns at a legal height and remove rubbish and belongings prior to settlement.

What does the Solicitor or Conveyancer do?

The Solicitor or Conveyancer peruses the Contract and Section 32, orders property certificates, prepares a statement of adjustments, prepares settlement documents and arranges for signing of them, forwards copies of documents to your bank for their information, forwards cheque details to the mortgagee bank or yourself if you are providing funds, attends settlement on your behalf, confirms correctness and validity of settlement documents and cheques, performs due diligence on the property and notifies council and water authorities of change of ownership.

When can I collect the keys?

Usually straight after settlement. Settlement time is negotiated between the parties involved but ultimately is decided by the vendor’s mortgagee bank or the vendor if they have clear title.
Keys can be collected from the Real Estate agent or, if buying an Off the Plan property, from the builder’s representative.

What about stamp duty, how does that get paid?

If you are obtaining a mortgage, the bank will usually pay the stamp duty and Land Titles
Office lodgement fee from your loan funds. If you are providing all funds you will have to
provide those fees on, or shortly after settlement and your Solicitor will lodge the documents on your behalf.

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Sales

How do I go about selling my property?

You will need to have a Section 32, also known as a Vendor’s Statement prepared. The S32 is a legal document that accompanies the Contract that outlines details specific to the property and contains legally required certificates and disclosure of encumbrances as required by the Sale of Land Act.

What about the Contract?

Most real estate agents provide a standard Contract of Sale, however if selling without an agent or by Auction you will need to have special Contracts drawn up by a solicitor.

I sold my property. Now what?

The Contracts and S32s will need to be signed by yourself and the purchasers. A copy will be forwarded to your Solicitor and if there is a mortgage on the property they will begin the discharge process to let your mortgagee know that the property has sold and that they are to wind up the mortgage and make the original title available for settlement.

When can I get the deposit money?

Usually the deposit is released at or after settlement. Where the settlement proceeds are
sufficient to discharge a mortgage or where there is no mortgage, a Section 27 Statement may be
prepared by the solicitor which allows for an early release of the deposit. However, the purchaser is under no obligation to sign the Section 27.

Do you need to pay stamp duty or Land Titles Office fees when you sell?

No. These are only payable when you purchase a property, However depending on how many properties you own there may be land tax payable on the property.


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Settlements

Could anything delay the settlement?

Unfortunately yes. Bank delays, incorrect cheque details or lost/misplaced documents by either party can all cause the settlement to be delayed. Penalty interest may be payable by the purchaser if the fault is on their side.

Do I have to attend settlement?

No. Your Solicitor will attend on your behalf along with the other party’s Solicitor and any mortgagee banks involved in the process.

Also check out this article on how to have a painless settlement day
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Transfers of land

I want to transfer all or part of my property’s ownership to a relative. How does this work?

This process is commonly called a Transfer of Land and varies depending on who you are transferring the property to and if there is a mortgage on the property.

What about if I transfer to my spouse and there is no mortgage?

This is a straight forward transaction. If transferring to a spouse or de-facto partner then no stamp duty is payable and so transfer documents are prepared and lodged at the Land Titles Office along with the original Title so a new Title can be issued.

What about if I transfer to my brother and there is a mortgage?

This is more complicated. If transferring to a relative other than a spouse or partner then stamp duty is payable and the Transfer will need to be assessed by the State Revenue Office. They will then advise of the amount of stamp duty payable. When there is a mortgage, the bank will need to make the original Title available. The banks all have their own internal processes for doing this. They usually require a re-finance of the existing mortgage and often charge a fee.

How long does it take?

At time of writing, with no bank involved and no stamp duty to be paid it can take around one to two weeks. With a bank involved and stamp duty payable anywhere upwards of four to seven weeks.

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