We act for individuals, property developers and businesses in helping to simplify the numerous aspects of conveyancing. We handle standard and complex conveyancing matters, both residential and commercial, at competitive rates.
What is conveyancing?
Conveyancing is the process of transferring ownership of a property from the vendor (owner or ‘seller’) to the purchaser ('buyer'). It is a complex area of law. It is not just a process of filling in forms. It involves the preparation of legal documents, checking for problems or restrictions relating to the property and settlement involving the transfer of large sums of money.
As an Accredited Property Law Specialist, Paul Burns is ideally qualified to handle all of your conveyancing needs.
What is a vendor’s statement?
When a property is sold, the vendor must provide the purchaser with a Vendor’s Statement (also called a section 32 statement) before the purchaser signs the contract. The Vendor’s Statement should contain information about the land including information about easements, covenants and similar restrictions, planning information, rates, taxes and outgoings charged on the land, services connected to the property, building permits obtained in the previous seven years, owner builder matters, any notices or orders affecting the land of which the vendor has knowledge, Owners Corporation information (if applicable) and title and plan of subdivision information.
The Vendor’s Statement does not contain information about the quality and condition of the buildings or fittings.
A purchaser may be able to withdraw from a Contract of Sale if the Vendor’s Statement contains incorrect or insufficient information.
As an Accredited Property Law Specialist, Paul Burns is ideally qualified to make sure your Vendor's Statement is properly prepared.
The Contract of Sale
A Contract of Sale is an agreement entered into between the vendor and purchaser. Real estate sales must be by way of written Contract signed by the parties. The Contract is prepared by the estate agent or the vendor’s legal lawyer or conveyancer. Once a Contract is signed by both parties, it is legally binding on both parties.
Does a cooling off period apply?
A cooling off period applies to the purchase of real estate in many cases. If none of the exceptions listed below applies, the purchaser may end the contract within 3 business days of the date the purchaser signed the Contract by giving written notice to the vendor. Strict rules apply in relation to the service of a cooling-off notice. A small mistake in the manner it is served could expose you to being sued. You should consult an experience conveyancing lawyer, such as Paul Burns, an accredited property law specialist, before serving a cooling-off notice.
If the purchaser validly ends the Contract using the cooling-off procedure, the purchaser is entitled to a refund of any deposit paid except for $100 or 0.2% of the purchase price, whichever is more.
The cooling off period does not apply if:
- The purchaser purchases the property at auction or within 3 business days before or after an auction.
- The property is used mainly for industrial or commercial purposes.
- The property is more than 20 hectares in size and is used mainly for farming.
- The parties have previously entered into a Contract for the same property.
- The purchaser is an estate agent.
- The Purchaser is a company.
It is most important that the purchaser arranges for the Contract and Vendor’s Statement to be checked by an experienced conveyancing lawyer before the end of the cooling off period, or, if there is no cooling off period, before to signing the Contract or before the auction (if applicable).
What happens to the deposit?
The deposit is usually paid to the estate agent, who retains it as ‘stakeholder’ for both vendor and purchaser.
The deposit can only be released to the vendor once the vendor has provided a valid deposit release authority (also called a section 27 statement) to the purchaser and information about liabilities affecting the property. The purchaser should not sign a section 27 statement releasing the deposit to the vendor until the purchaser’s conveyancing lawyer advises that this is in order. The purchaser may delay doing so for up to 28 days from the time a valid deposit release authority is received. However, if some situations, the deposit should not be released early (prior to settlement).
As an Accredited Property Law Specialist, Paul Burns is ideally qualified to make sure you do not take an unnecessary risk by agreeing to the early release of the deposit.
What goods (chattels) are included in the sale?
Goods (chattels) are movable items such as carpets, light fittings, blinds and drapes, dishwashers, movable garden sheds, heaters, air conditioning units, swimming pool equipment, above ground pools, TV antennas, portable clothes lines and remote control devices.
Both the vendor and purchaser should carefully check that the Contract correctly lists all goods that are included in the sale.
Preliminary steps by purchaser
Before the Contract is signed or before the cooling off period (if any) expires, the purchaser should:
- Ensure that finance is or will be approved before signing the Contract. If in doubt, the Contract should be made subject to finance.
- Carry out a thorough inspection of the property to check the condition of the property, appliances and fittings. The usual rule is that the purchaser buys the property ‘as is’ and is only entitled to have the property delivered in its condition as at the date of the Contract, fair wear and tear excepted.
- Consider arranging for an inspection by an architect or builder about the condition of the property and a pest inspection before the contract is signed or the cooling off period expires.
- Check that the boundaries of the property and the distance to the nearest intersection correspond with those shown on the title plan.
- Check with the local council to ensure that the property can be used in the way the purchaser intends, especially if the property is commercial or industrial or if any building works, other development or non-residential use is planned, and make any enquiries regarding planning proposals for neighbouring properties.
- Where the property contains a pool or spa, check that it is fully fenced in accordance with the pool fencing and boundary requirements. If not, the usual rule is that purchaser takes the property ‘as is’ and will be required to comply with these requirements at his or her own expense.
- If property is vacant land, the purchaser should check with the local council and the purchaser’s builder or architect to make sure they will be able to build the home intended and the availability and cost of connecting services such as electricity, gas and telephone to the property. It is also advisable for the purchaser to arrange for soil tests to be carried out by a soil engineer.
Other preliminary steps may be advisable depending on the circumstances.
As experienced Melbourne conveyancing lawyers, we can provide you with valuable advice before you sign the Contract of Sale so as to minimise unexpected and expensive problems.
What fees and charges are payable?
The vendor must pay:
- Estate agent’s fees and advertising expenses (which are usually deducted from the deposit)
- Conveyancing fees and expenses.
- Registration fees on the discharge of any mortgage or withdrawal of any caveat
The purchaser must pay:
- The deposit and the balance of the purchase price
- Adjustments of rates and charges
- Conveyancing fees and expenses
- Lender’s fees (including mortgage insurance if any)
- Land Titles Office registration fees on the transfer and any mortgage
- Stamp duty on the transfer
Government grants and stamp duty reductions are available in certain circumstances for eligible:
- First home purchasers; and
- Pensioners and some concession card holders.
As grants and exemptions are subject to change, current eligibility requirements should be ascertained before the purchaser signs any Contract.
What is the role of a conveyancing lawyer?
The role of the Vendor’s conveyancing lawyer includes:
- Preparing a Vendor's Statement and any special conditions required
- Preparing a Contract and arranging for signing if applicable
- Arranging for the release of deposit (if it is able to be released)
- Preparing a goods statement or declaration
- Checking the transfer and statement of adjustments
- Arranging for discharge of the vendor’s mortgage
- Arranging and attending settlement on the vendor’s behalf
- Advising the council and water authority of the sale.
The role of the purchaser’s conveyancing lawyer includes:
- Checking the Contract of Sale and Vendor's Statement and giving advice to the purchaser before the Contract is signed or within the cooling off period
- Conducting a title search and applying for property enquiry certificates
- Attending to nomination of any additional or alternative purchaser if applicable
- Preparing the transfer of land and arranging for signing
- Checking mortgage documents and arranging signing
- Preparing a statement of adjustment of rates and charges
- Arranging and attending settlement
- Notifying the State Revenue Office, council and water authority of the change of ownership;
- Attending to payment of stamp duty and lodging documents for registration (where there is no lender involved).
Please note: The contents of this website are not intended to act as a substitute for legal advice. Legal advice should always be sought before action is taken based on any of the matters described in this website.
Contact us to arrange a consultation.