The purchase or sale of your home is often the biggest and most important financial transaction you will make. The conveyancing process can be confusing for some and stressful for most. Whether you are buying or selling property in ACT, NSW or QLD our experienced team will guide you through every step of the process.
After a loved one dies, or to give effect to a property settlement, real estate may need to be transferred between parties or sold. Our probate, family law and conveyancing teams work together to offer a complete service.
What is conveyancing?
Conveyancing is the legal process of transferring real estate from one party to another, whether it be residential, rural or commercial property, a house, vacant land or unit off the plan.
Signing a contract to buy or sell property creates binding obligations between the parties – the penalties for default on a contract can be significant, and it is important to understand the legal implications before entering such arrangements.
The transfer of property can also trigger financial considerations such as capital gains tax, land tax and transfer duty.
The conveyancing process
During the conveyancing process, your legal team manages the administrative and legal requirements for a property transaction.
Buying property involves recommending and conducting a series of searches and investigations to ensure the buyer not only receives clear title to the property but understands exactly what they are purchasing. We carry out a range of duties during the transaction including conducting due diligence, reviewing and negotiating contract terms, flagging potential issues, liaising with your lender and agent, arranging and conducting settlement of your matter and generally protecting your interests. There is a lot to do in a short timeframe – even for off-the-plan sales and purchases that may not settle for months, the parties are essentially bound by the terms of a contract after just a few weeks’ negotiation.
Selling property requires that a compliant written contract be in place. Sellers must understand the terms and conditions of the contract generally and their legal obligations to avoid the disappointment of being unable to enforce a contract after a sale is made.
What is e-conveyancing?
Traditionally, settlement of a conveyancing transaction involved the physical meeting of lawyers and bankers to check and swap documents and bank cheques, and the lodgement of documents with government authorities to change ownership of the property. An error as simple as a misspelt middle name could cause settlement to fail and all parties would need to reschedule, causing inconvenience and undue cost.
E-conveyancing has revolutionised this process through an electronic platform which enables lawyers, conveyancers and financial institutions to transact online, improving transparency and efficiency and streamlining manual processes and paperwork.
Online settlements remove the location and time barriers of physical settlements, visually track the progress of each stage of the transaction and facilitate online lodgement of documents with land registries and authorities and faster access to sales funds.
The online property exchange known as PEXA operates nationally to provide a standardised platform for the completion of online property transactions.
Ownership interests in property
Consideration of ownership interests when acquiring property with another party can help prevent unintended outcomes in estate planning, and protect your legal interests, which could be threatened by financial stress or breakdowns in personal or business relationships.
A joint tenancy is subject to survivorship provisions – when one owner dies, the other automatically inherits the deceased person’s share which cannot be left to anybody else, even by contrary terms in a Will. While joint tenancies are generally appropriate for domestic partners, this may not always be the case.
Property held as tenants in common can specify the individual shares held by each owner (for example 50/50 or 30/70). In such cases a co-owner can transfer, sell or leave his or her share to a beneficiary by Will.
Getting a mortgage
Most people rely on a loan from a lending institution to help finance the purchase of a property. A mortgage is essentially a ‘statutory charge’ in favour of a lender over property held in the borrower’s name. The mortgage secures the repayment of the money loaned and is registered on the title to the property. The loan contract gives the lender the right to sell the property in the event of a default.
An easement is a right to use property belonging to someone else in a certain way. The easement may be a private easement, such as a strip of land giving neighbouring landowners access to their property, or a public easement, like an easement for the maintenance of sewerage or electricity services.
Easements can affect the value, use and future development of land and should be fully investigated during a property transaction.
Commercial and retail leasing
When leasing commercial property, it is important for tenants and landlords to understand the relationship they are entering and their respective rights and obligations. Most commercial and retail leases in the ACT are governed by the Leases (Commercial and Retail) Act 2001 (ACT).
The Act regulates dealings and lease provisions and requires transparency and fairness during the negotiation phase. A landlord leasing or offering to lease commercial or retail premises has specific disclosure obligations.
Leasing disputes usually arise due to poorly drafted, ambiguous or non-existent lease agreements, or the failure of the parties to understand the terms. Legal guidance when entering a leasing arrangement assists to minimise these disputes.