Property Law & Conveyancing - Buying & Selling Property
We can offer assistance with property law in a number of ways:
- Conveyancing (sale, purchase, transfer)
- General law conversions
- Leases and licences
- Granny flat agreements
- Retirement villages
- Section 173 agreements
- Fencing notices and neighbourhood disputes
- Building contracts
Contact us to find out how we can assist you or to arrange a free 30 min consultation.
Buying A Property
As buying property is one of the biggest financial decisions you will make it's important that you get expert advice.
If you are ready to buy a property, please contact us.
Do you have sufficient funds to buy?
It is not just the purchase price you need to take into consideration.
You also need to ensure that you will have sufficient funds to pay stamp duty (calculated on the purchase price – the higher the price, the higher the stamp duty), registration fees on the transfer of land (required to register your name on the title of the property), legal fees and possibly building and pest inspections.
Where Should You Start
If you find the property you are interested in, contact us and we will take it from there. We will contact the agent and request the vendor statement (a document providing a range of information about the property), review it and advise you on any issues you should be aware of. We will also review the proposed contract and negotiate any changes required to put you in the best position possible.
The Process Of Buying A Property
You investigate the property and ensure that you are aware of any issues adversely affecting it (due diligence). This includes a physical inspection of the property, review of the vendor statement and making independent enquiries with the relevant authorities (such as the Council, water authority and owners corporation).
You negotiate the terms of the purchase and sign a contract of sale. You will then be required (usually, but not always) to pay the deposit of 10% of the purchase price. The value of the deposit can be negotiated but it is unlikely to be less than 5% of the purchase price.
You "settle" the matter. This is usually 30 or 60 days after the signing of the contract. At settlement you will pay the balance of the purchase price in exchange for the documents allowing you to register your name on the title of the property.
You register your name on the title. You will need to have the purchase assessed by the State Revenue Office and pay stamp duty, after which you will be able to have your name registered on the title by the Titles Office.
How Much Will It Cost You
Once you know the purchase price, we will be able to calculate stamp duty and registration fees for you.
You may wish to calculate stamp duty to help you plan your purchase.
Contact us to discuss legal costs in your purchase.
Selling A Property
If you wish to sell a property, please contact us.
Appoint a real estate agent
You may sell a property yourself or decide to appoint a real estate agent to handle the sale. If you appoint an agent, you would sign an exclusive sale authority with them.
You should know two basic things about the authority:
- By signing it you give the agent the exclusive right to market and sell the property for a specified period – usually 90 days.
- If you seek to sell the property with another agent within the period of the authority, you may be liable to pay commission to both agents.
The agent's obligation extends to finding a purchaser who signs an unconditional contract. The agent is entitled to a commission if this is achieved, even if settlement does not take place. This is something to bear in mind in the very unlikely event that the purchaser is unable to fulfill their obligations under the contract of sale.
Vendor disclosure statement (Section 32)
All vendors must provide certain details relating to the property to prospective purchasers. This document is known as a vendor statement or Section 32.
Your solicitor or conveyancer will prepare this document for you and agents are always very anxious to receive it as they cannot sell the property without it.
Your solicitor or conveyancer will make enquiries and obtain all the certificates that are necessary to ensure the statement is correct and valid.
What property certificates are required?
Your solicitor or conveyancer will discuss with you what certificates are necessary to ensure the vendor statement is correct and they may include:
- Land information certificate
- Planning certificate
- Water information statement
- Building approval certificate
- Owners corporation certificate
- Heritage Victoria certificate
If the statement is not valid, the purchaser may withdraw at any time up to final settlement. If that happens, the purchaser will recover the deposit and you will probably be liable for the agent’s commission on the first sale as well as on any resale. You may also be faced with additional legal costs.
The contract of sale
The contract of sale is the most important document in the conveyancing process as it records the terms of your agreement with the purchaser regarding the purchase of the property.
The contract can be prepared by your agent or solicitor/conveyancer.
The standard contract provides that the property remains at the risk of the vendor and you should maintain insurance in respect of the property until settlement.
Goods and service tax – GST
Most residential transactions do not attract GST, but the sale by a builder or developer of new residential premises or vacant land DOES attract GST. If you believe that your sale may attract GST please be sure to discuss that possibility with us at the earliest possible opportunity.
Capital gains tax – CGT
Most residential transactions do not attract CGT, but the sale of an investment property may have CGT consequences and you should seek advice from your accountant before deciding to sell.
Release of deposit
Purchasers usually pay a 10% deposit at the time the contract is signed and this amount must be held by a stakeholder, agent or solicitor, until settlement.
It is possible for the deposit to be released prior to settlement, but the purchaser is entitled to have full details of any amounts owed in relation to the property and this means that we must obtain information from your lender, if applicable.
If you do not owe any money on the property, your solicitor or conveyancer will arrange for the deposit to be released to you 28 days after the date of the contract.
The agent is entitled to take commission from the deposit once it is released. This helps to explain why agents are so keen for the deposit to be released.
Paying out your loan and discharging your mortgage
If there is a mortgage over your property it is necessary for your solicitor or conveyancer to arrange for that mortgage to be discharged and for the lender to bring the certificate of title to the property to the settlement.
You will need to provide your lender with a completed and signed discharge authority as soon as possible so they can arrange the discharge in a timely manner.
Transfer of land
This is the document that acts to transfer ownership of the property from the vendor to the purchaser. It is prepared by the purchaser’s solicitor, signed by the purchaser or his/her solicitor or conveyancer and then sent to the vendor for signing in anticipation of it being handed over with the certificate of title at settlement.
Purchasers living in a domestic relationship usually purchase as joint tenants, which means that the survivor becomes the sole owner, whereas purchasers in a business relationship will usually purchase as tenants in common, which means that upon death the share of one owner who dies passes to that person’s family.
The purchaser is entitled to conduct a final inspection of the property in the week before settlement and the agent will arrange this. The purpose of the inspection is to establish that the property is in the same condition it was on the day of sale, fair wear and tear excepted.
A purchaser must accept minor deterioration, such as an overgrown garden, but may be entitled to complain in relation to more serious deterioration in the property, such as a tree falling on the house. This is another reason to continue insurance cover.
Settlement takes place at the place where the title to the property is held. As most homeowners have a mortgage, their titles are held by their banks, generally at head offices in the Melbourne CBD.
Your solicitor or conveyancer will appoint a settlement agent to attend settlement on your behalf and it is not necessary for you to attend.
At settlement the purchaser’s representative hands over the money due to the vendor and in exchange the vendor’s representative hands over the relevant documents to enable the purchaser to become registered as the owner of the property. This process normally takes between 5 and 20 minutes, depending on the complexity of the transaction.
Proceeds of sale are usually provided in the form of bank cheques which must clear before you have access to the funds. So, you are likely to have access to your sale proceeds within 2-3 business days of the settlement day.
The vendor is obliged to pay the rates on the property until settlement and the purchaser thereafter. Therefore rates are adjusted at settlement to ensure that this happens.
This is done by deducting from the money paid to the vendor any amount outstanding for rates, and then adjusting those rates as paid, so that the purchaser pays back to the vendor the rates paid by the vendor for the period after settlement. A cheque is then forwarded to the rating authority for any amount owing and rates are therefore paid until the end of the rating year. Your solicitor or conveyancer will notify the rating authorities of the change in ownership.
Keys are usually collected by the purchaser from the agent after settlement. The agent should only hand over keys upon receipt of written authorisation from your solicitor or agent (by fax or by email).
Other keys will normally be left in the property, along with instruction books and household information.
Your solicitor or conveyancer will provide you with full financial details relating to the settlement and will also advise the local council and water authority of your purchase.
It will be your responsibility to arrange for final readings of electricity, gas and telephone services and the forwarding of those accounts to your future address.
If you have repaid a mortgage at settlement, your financier will also report to you after settlement.
We can help
Contact us to find out how we can assist you or to arrange a free 30 min consultation.