Conveyancing

Frequently Asked Questions

Conveyancing is one of the most important steps involved in buying or selling a property, but it can be confusing and potentially risky if done incorrectly. Conveyancing is simply a term used to describe the transfer of legal title from one person or entity to another. It usually involves entering into a Contract of Sale.

Conveyancing can be done by a licensed conveyancer or a solicitor. There are a number of advantages in using an experienced professional for this task to avoid pitfalls.

If you are looking to purchase a property, our conveyancing team can assist with perusal of the Contract of Sale and Section 32 Vendor Statement, advising you on any contractual issues and checking the information given in the Section 32 Vendors Statement, advising you of your rights if false information is presented or the necessary information is not disclosed, conducting relevant searches, preparing the Transfer of Land and preparing for settlement and notifying authorities. We also undertake conveyancing for retirement village units, which can be complex with a lengthy sale time.

If you are looking to sell your property, our conveyancing team can assist with the preparation of the Contract of Sale and Section 32 Vendor Statement, organising the discharge of mortgage (if applicable), preparing the release of deposit, preparing for settlement and notifying authorities.

Our costs are competitive and we believe it is worth the extra effort to engage a solicitor to ensure this important decision is made with a minimum of fuss and with utmost confidence.

What is conveyancing?

At its most basic, conveyancing is the process whereby legal title to the property is transferred from the vendor to the purchaser. However, the conveyancing process also involves multiple additional aspects. These include drafting special conditions for inclusion in the Contract of Sale, verifying your identity, liaising with your bank regarding discharge of the mortgage, early release of the deposit, complying with government requirements regarding Foreign Resident Capital Gains Tax Withholding and GST Withholding, preparing documents for stamp duty assessment, adjustments for outgoings and notifying authorities of the change in ownership.

Is there a cooling-off period when I purchase a property?

You are entitled to a 3 clear business day cooling-off period when you purchase a property. For example, if you sign a Contract of Sale on Thursday, you have until close of business on Tuesday to exercise your cooling-off rights. However, you will forfeit 0.2% of the purchase price to the vendor when you cool off.

The cooling-off period is not available if:

  • You purchase at an auction, or three clear business days before or after an auction;
  • The property is commercial or industrial; or
  • The property is used for farming and is more than 20 hectares in size.

The cooling-off period is still available if you obtain legal advice before signing the Contract.

You can also make the Contract conditional on finance approval or satisfactory pest and building inspections. If these conditions are not met (such as your finance not being approved or the pest report revealing an active major pest infestation), you can terminate the Contract and receive your full deposit back.

When can I lodge a caveat?

A caveat is lodged on the title to a property. It is a notice that the caveator holds an interest in the property.

You can only lodge a caveat if you are claiming an interest in the property. Some scenarios include:

  • A purchaser under a Contract of Sale
  • A person claiming a constructive, implied or resulting trust because they have contributed to the purchase, maintenance or improvement of the property
  • An entity that has been granted a charge over the property under a written agreement.

The following scenarios do not give rise to the ability to lodge a caveat:

  • Being a party in a family law proceeding (unless the party is claiming a constructive, implied or resulting trust as above)
  • A person who is owed money by the owner of the property without a written agreement including a charging clause

What is PEXA?

Almost all conveyancing transactions occur electronically. The main provider of electronic settlements is PEXA. The PEXA platform allows the transfer documents to be prepared and lodged electronically with the Titles Office. The settlement funds and stamp duty are also paid simultaneously with the lodgement of the transfer documents.

What stamp duty concessions are available on a property purchase?

When you purchase a property, you usually pay stamp duty to the State Revenue Office calculated as a percentage of the purchase price. There are a number of exemptions and concessions for stamp duty that may be available:

  • Principal place of residence concession
  • First home buyer duty exemption or concession
  • Pension exemption or concession
  • Charity exemption
  • Off the plan concession

Most of these concessions require the property purchased to be your principal place of residence. There is also usually a maximum purchase price after which the concession is not available.

What is an off-the-plan sale?

An off the plan sale is where the property (whether it is a block of land or a house, townhouse or apartment) is sold before the plan of subdivision is registered.

The Contract of Sale will usually include many additional special conditions compared to a standard Contract of Sale. These conditions will cover:

  • The sunset date. This is the date that the plan of subdivision must be registered by. If this date is not met, either party may terminate the Contract (although the vendor must have your consent or a court order to terminate)
  • The vendor may be able to terminate the Contract for other reasons without needing your consent, such as planning approvals containing unfavourable conditions, not enough pre-sales of apartments, or for any other reason.
  • The vendor can make changes to the plan, layout, specifications, fixtures, finishes and fittings. You can only object to changes if they are major.
  • You will not be allowed to lodge a caveat on the title.
  • If you are purchasing a block of land, you may be required to build on the land within a certain amount of time after settlement, and you may not be allowed to sell the land until the house is built

Due to the specific nature of these special conditions, it is very important to get legal advice before you sign the Contract. Your lawyer can also assist to negotiate the removal or amendment of any conditions that are against your interests.

Questions? Ask our Property Law team.

Jessica Hall
Lawyer
Property
,
Commercial
,
,
Teagan Howard
Lawyer
Property
,
Deceased Estates
,
,
Amanpreet Mintoo
Lawyer
Property
,
Commercial
,
Punjabi
,
Cantonese
03 9870 9870