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In Australia, becoming a home owner is a right of passage. It can be both an exciting and stressful time in your life, from finding the perfect property to getting finance to achieve the great Australian dream. While you don’t need a solicitor or licensed conveyancer to purchase property, it is highly recommended you speak with one our experienced solicitors to help you navigate the complex conveyancing process involved and avoid the pitfalls of conveyancing.
It is recommended you get legal advice about the conveyancing process from a solicitor rather than a conveyancer, as a solicitor has a broader knowledge of the law. Our property lawyers are fully insured and covered through professional indemnity insurance.
In NSW, there are strict rules and regulations around property transactions. They are covered by the Real Property Act 1900 (NSW).
Common conveyancing terminology
Vendor: The person selling the house.
Private treaty: An agreement between a vendor and purchaser for the transfer of property for the property value set by the vendor.
Auction: A sale of property to the highest bidder usually above a reserve price set by the vendor.
Joint tenants: A tenancy with two or more co-owners who have identical interests simultaneously by the same interest and with the same right of possession. Each joint tenant has a right of survivorship to the other’s share in the property. That means when one joint tenant dies, the other tenant has a right to the other’s share in the property. For example married couples who purchase property together.
Tenants in common: A tenancy by two or more people in equal or unequal undivided shares with each person having a right to possess the property but no right of survivorship. For example friends purchasing an investment property together.
Easements: An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose. For example, shared driveway access, utilities such as stormwater, etc.
Caveat: A warning or provision. For example, specifying which type of fence is to be used on the property boundaries.
Certificate of title: The certificate of title sets out what you own. It is registered with the Land Titles Office and states the current owner, a description of the land and any encumbrances on the land e.g. mortgage, caveats and any dealings.
Land tax: In NSW, stamp duty is a tax paid on the purchase of property. You must pay stamp duty within 3 months of signing the contract of sale. If you have purchased your property off the plan and intend to live in it, you may be able to defer payment of stamp duty for up to 12 months. Stamp duty varies with CPI and is based on the property market value. As of 1 August 2020, for the next 12 months first home buyers who purchase new-build homes or vacant land under $800,000 are not required to pay stamp duty.
The NSW government is currently workshopping changes to stamp duty and looking at implementing a yearly land tax payable on all property based on the land valuation rather than an upfront payment at the time of purchase.
The Conveyancing Process
- Get pre-approval. It is important to start the approval process for your home loan before you start looking for a property. That way you know how much money you can spend and don’t risk losing A property because the bank has knocked you back. There are many lenders so it may be beneficial to speak to a mortgage broker who can do the comparison work for you. Your lender may have conditions attached to the loan e.g the condition or size of the property, undertaking a building inspection, etc.
Start the property search
Start the property search. You can conduct your own property search or you can enlist the services of a real estate agent to put together a portfolio of properties that match your requirements.
Find a property and make an offer
Find a property and make an offer. Before making an offer, it is recommended that you get a building and pest inspection so that you are well informed of any issues with the property e.g. termite activity, structural issues, etc. This is often a requirement by your lender before they will release the money to you. These inspections are at your own cost so you should be serious about your purchase before you arrange them. Vendors can arrange a building and pest inspection before listing the property on the market, however, for peace of mind, you should organise your own.
Offer accepted. The real estate agent provides both the vendor and purchaser with copies of the contract of sale. You should carefully read through the contract of sale BEFORE signing it and you should have your property lawyer read through it too to make sure there are no surprises such as easements. Your property lawyer will also conduct a title search to ensure there are no other claims to the property and you are getting what you pay for e.g. size of land, etc. The search also includes the current owner and any encumbrances over the property e.g. mortgage, caveats etc. The search fee is $397.40 (not including your property lawyers fees). The contract of sale must include: a copy of the title documents, drainage diagram, current zoning certificates and if the property has a swimming pool or spa it must include copies of the valid certificate of compliance or valid occupation certificate or both.
Cooling off period
Cooling off period. In NSW, there is a five business day cooling-off period unless the property has been purchased at auction. If you withdraw from the purchase of the property, you may be liable to pay 0.25% of the purchase price as the vendor has lost money while the property has been off the market during this time.
Contract of sale exchanged
Contract of sale exchanged. Once you and your property lawyer have read through the contract and signed it, a contract exchange takes place. Your deposit will also be taken (usually 0.25% of the property value) and it is held in a trust account until the conveyancing process has been finalised.
This is your final opportunity to inspect the property and ensure the property is in the same condition as when you made your offer. This often happens on settlement day, however, vendors and purchasers can negotiate this.
Congratulations! Your property purchase has been successful. You get the keys to your new home and can start moving in.
There are always risks when purchasing a house. That is why it is important to have an experienced property lawyer to guide you through the process. Some of the risks associated with buying include:
- Buying off the plan can be a big gamble. Property developers and real estate agents sell the idea of a property but may not deliver on the image of what has been sold. If this happens, you might have recourse under contract law. It is essential you get legal advice as soon as it comes to your attention that what is or has been delivered does not meet what you agreed to. There is also a risk that the property’s market value may be worthless when it is finished than what you have paid for it.
- Making an offer before getting financial approval from your lender. If you make an offer before arranging pre-approval, you run the risk of the sale falling through if you are unable to raise the funds for your purchase. If this happens, you may be financially liable for 0.25% (or the amount of the deposit) as the vendor has lost the opportunity to sell the property during that time. You also need to think about the tax implications (stamp duty) and any additional costs that may arise during the conveyancing process such as conveyancing transaction costs (title searches, title transfer and legal fees.
- Buying into strata properties. Strata properties are gaining popularity with the housing boom in Sydney. Strata is the purchasing of a lot within a property e.g. apartment, townhouse, etc, with shared ownership of the common property e.g. external walls, staircases, driveway, swimming pool, gardens, etc. Strata properties have a body corporate or owners corporation made up of lot owners who pay annual or quarterly fees used for the upkeep of common areas. The body corporate holds regular meetings about issues impacting on the strata scheme e.g. major works. When buying a strata property, you should inspect the strata scheme’s legal documents such as financial records, current insurance policies, etc. However, there may be additional costs with accessing these records. It is also essential that the strata scheme has appropriate insurance to cover costs associated with large scale events. For example, major structural issues like the ones experienced with Opal Towers.
The above is general legal information and should not be considered legal advice. You should speak with one of our property lawyers for legal advice tailored to your specific legal problem. It should also be noted that there may be conveyancing transaction delays due to COVID-19.
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Frequently Asked Questions.
Conveyancers specialise in real property transactions. A property lawyer not only deals with real property transactions but has a broader knowledge of the law. If you have multiple issues connected with your purchase, for example, trust accounts, tax implications, family law, wills and estate, construction, etc. Both conveyancers and property lawyers are required to be registered and have professional indemnity insurance.
Guzumping is when a vendor accepts your offer only to sell the property to someone else for more money. A sale is not final until contracts have been signed and exchanged. If you are guzumped before the exchange of contract, there isn’t much you can do.
Usually they are much more expensive due to the added value and advice they are able to bring to the table and ensure your conveyance is successful. Having said this, at Jameson Law our conveyancing rates are fixed and very competitive. This is only made possible due to the efficient structure of our dedicated conveyancing team and the effective legal and business processes we follow. Contact us today for a competitive fixed price quote.
The difference between a conveyancing lawyer and a conveyancer is in the name; that is the former is a lawyer while a conveyancer is not.
While a licensed conveyancer specialises in the process of property transfer, they are not property lawyers and are not otherwise familiar with Australian property law or other legal matters or legal issues that may arise. In other words, conveyancers are able to assist you with your conveyancing needs and conveyancing transactions only. Beyond that, you will require a property lawyer to assist with any legal issues relating to property law.
Conveyancing lawyers are those that practice conveyancing. They act in the same capacity as a conveyancer when simply assisting a client with a property transaction, however, they are able to also provide legal advice regarding other property law matters or legal issues that arise.
Our Michael Najem is a senior solicitor with over 25 years of experience in Property Law and Environmental Law. He is also a lecturer in Conveyancing at the University of Sydney and Environmental Law at Notre Dame University
We provide a fixed fee for our professional fees + dibursements. Disbursements can range anywhere from $150 to approx $1000.
Additional professional fees will only come into play if you want us to review contracts for more than 3 properties.
Settlement by default is 6 weeks. We can negotiate varying timeframes on your instructions.
We pride ourselves on excellent communication. Iniitaly you will receive writtent advice on your contract as well as advice regarding property purchases / sales. We will be in contact frequently to obtain instructions and advise you on the other party’s responses up until the contract has been executed.
Once it is time to settle, generally 6 weeks, we will be in touch with you to ensure you are ready to settle. We will advise you of the pre-settlement inspection date, and guide you through the pre-settlement process – assisting and advising on any grivances or concerns you have with the state of the property. Once all issues are resolved, will advise on final settlement date, and keep you updated with any progress. You will then receive a congratulations message from the team 🙂
You will only be required to cover our costs incurred. This is generally only the contract review costs which is stipulated in your costs agreement.
As part of the contract review, we confirm the measurements as dictated by the contract. This is the measurement that should make the basis of your offer, and not rely on any marketing by real estate agents etc.
We conduct all checks on your part. We recommend you obtain your own building inspection and pest inspection reports – though happy to assist in reviewing these with you.
We will provide advice on any structures on the property that are not certified/approved by council as well as any other concerns that are found as a result of the nominal conveyancing searches.
We will organise the inspection with the vendor and provide guidance on what to look out for. We will then convey any concerns you have to the other party and resolve any disputes.
Yes. It is always important to advise us upfront if you require an adjusted settlement date so that we can ensure it is stipulated in the contract prior to execution. If the contract is executed and you change your mind about the settlement date, there are often financial implications. We normally negotiate better rates to ensure that if there are any delays or changes requested by you at a later stage in the settlement period, then the financial implication is more tolerable.
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