CONVEYANCING

Whether this is your first time buying a property or you are an experienced investor, Hensen Maxwell Solicitors provides a comprehensive service. Let us do the worrying, while you get on with your life.

We know that buying and selling property can be an overwhelming process, and nowadays there is so much that needs to be done as part of the process. We will ensure that the settlement process is as smooth as possible.

Following your initial instructions, much of the time we can work behind the scenes without bothering you and liaise with you at the important times. Our friendly team is always here to answer any questions you have and help you understand the tasks that you need to complete.

In fact, before you sign a sale or purchase contract, we often offer pre-purchase advice or quick contract review at no cost upfront. This service has helped many clients because we can often assist with suggesting special conditions to protect your interests and advice in relation to any special conditions already in the contract. This is an important safeguard against a mistake that may be costly down the track.

Throughout the process, we can give you as much information as you need to feel confident, and we are always just an email or phone call away if you need more assistance.

OUR CONVEYANCING TEAM

CONVEYANCING FAQS

Selling real estate is usually a more straightforward process than buying. A general outline of the process is:

  • You list your property for sale with a real estate agent. It is a good idea to shop around and find an agent you are comfortable with. Make sure you have discussions with potential agents about things like how they propose to market your property, any advertising you will have to pay, and how much their commission will be.
  • A prospective buyer submits an offer to purchase your property, usually by signing a contract prepared by your agent. If you are happy with the offer, you sign the contract. Once the last party signs (which is normally you as the seller), you have a binding agreement.
  • If you have a mortgage on the property, you should contact your bank immediately to let the bank know that the property has been sold. The bank will prepare a release of the mortgage ready for settlement.
  • Your solicitor will liaise with the bank about settlement, and find out what amount is required to pay out the mortgage (if applicable).
  • Most property sales and purchases are done online, through a platform called PEXA. With PEXA, settlement takes place online, with the details worked out between the solicitors and banks. You sign an authority for your solicitor to settle the matter online – this also authorises your solicitor to digitally sign the transfer documents on your behalf.
  • Your solicitor will arrange settlement on the settlement date and calculate settlement figures.
  • The buyer is generally entitled to vacant possession immediately after settlement has happened. The keys to the property should be delivered to the real estate agent prior to settlement, ready for the buyer to collect.

There are strict time frames that apply under the contract, and if they are not met, then you may find yourself in legal trouble.

Most timeframes apply to the buyer, and if the buyer doesn’t meet them, you may have the right to withdraw from the contract, keep the deposit, and/or take legal action against the buyer.

The buyer has a 5-day cooling off period. If they terminate the contract based on the cooling-off period, you are entitled to claim a penalty of 0.25% of the contract sale price. To secure payment of this amount, you should make sure the deposit is not returned to the buyer until the penalty has been paid.

Strict time frames also apply to the settlement date. If you cannot settle on the date nominated in the contract, consequences may apply. In the standard REIQ Contract the parties have an automatic right to extend settlement by up to 5 days. There are also other rights of extension in limited circumstances.

The government has introduced stricter new requirements for property transactions, which mean that solicitors will be required to verify your identity as part of the transaction.

You should keep copies of the contract and settlement statement for your records.

Have you bought (or decided to buy) property with your spouse, de facto partner, relative or friend? Or are you receiving a property through a deceased Estate? If so, you might want to consider whether how you will own the property.

There are two different ways you can own a property with another person, as joint tenants or as tenants in common.

What are joint tenants? The main factors are:

  • You own the entire property equally;
  • You must own the property in equal shares; and
  • If one joint tenant dies, the property automatically passes to the surviving joint tenant. This means that the property is not included in the deceased’s Estate, even if they have tried to include it in their Will.

What are tenants in common? The main factors are:

  • You own the property in the shares they nominate when they buy the property;
  • You can own the property in unequal shares, including to reflect the share in which they contributed to buying the property; and
  • If one tenant in common dies, their share of the property becomes part of the assets covered by their Will.

Which should I choose?

There is no hard and fast rule about which form of ownership you should choose. It is a matter of deciding which form of ownership is right for your circumstances.

If you are unsure about which way you want to own the property, you should discuss this matter with your solicitor when buying the property.

If you have already bought property and want to change from joint tenants to tenants in common or vice versa, this is quite a simple and inexpensive process.

Buying real estate is both exciting and nerve-racking. It is also, for most people, the most expensive asset they will buy in their life.

When deciding on the solicitor you wish to use, we recommend you consider:

  • Is the cheapest quote necessarily value for money?
  • What legal services are included in the quote?
  • Are there services you will be charged extra for?
  • What quality of service will you get?

You should also:

  • Ask your solicitor what legal fees, stamp duty on the contract, and search costs you will have to pay.
  • Ask your financier or mortgage broker what bank and government fees and charges will apply to your loan.

The negotiation process before signing a contract can be different depending on the agent or the circumstances. But, once you have found a house, unit or land you want to buy and have reached an agreement and/or you are making an offer, the general process is as follows:

  • The real estate agent prepares the contract.
  • You should have the contract checked by your solicitor to make sure that your interests are protected. Usually, the contract will be a standard one, but there are standard conditions and/or special conditions which might need to be included, depending on your circumstances. You also might want to negotiate about the terms – for example, you might request to pay a larger or smaller deposit, if that works better for you financially.
  • Once the contract has been checked by your solicitor and you are happy with the terms, you can. This will constitute your offer to buy the property.
  • If the seller also signs the contract, it becomes binding on you and the seller. But until it has been signed, the seller has no obligation to sell the property to you, even if you have been verbally told your offer has been accepted.
  • The contract will be dated immediately upon the last person signing. Unless the dates are otherwise defined, the contract date is used to calculate the applicable due dates such as finance, building and pest, and settlement.

  • You must arrange your own insurance cover on the property – usually this must be done by no later than 5pm on the first business day after the contract date.
  • You have a 5-day cooling off period in which you may terminate the contract. If you do, the seller is entitled to claim a penalty of 0.25% of the contract sale price which is normally deducted from the deposit before it is returned to you.
  • The real estate agent forwards your copy of the contract to your solicitor.
  • You will liaise with your solicitor about what searches are to be done, and your solicitor will arrange for those searches to be done. The searches regarding the property are to ensure that everything is in order.
  • You are responsible for arranging any building and pest inspection for the property, and for proceeding promptly with your finance application.
  • Once your finance is approved, your financier will prepare mortgage documents for you to sign. These need to be signed with ‘wet ink’ on paper.
  • You will also need to sign a stamp duty form, which your solicitor prepares.
  • Must property sales and purchases are done online, through a platform called PEXA. With PEXA, settlement takes place online, with the details worked out between the solicitors and banks. You sign an authority for your solicitor to settle the matter online – this also authorises your solicitor to digitally sign the transfer documents on your behalf.
  • After settlement you are entitled to collect the keys from the agent.

  • The government has introduced stricter new requirements for property transactions, which mean that solicitors will be required to verify your identity as part of the transaction.

  • There are strict time frames that apply for your building and pest inspections, finance approval and any other conditions in the contract. If these strict time limits are not met, you may find yourself in legal trouble. For example, the seller may have the right to withdraw from the contract, keep your deposit, and/or take legal action against you.
  • Strict time frames also apply to the settlement date. If you cannot settle on the date nominated in the contract, consequences may apply. In the standard REIQ Contract the parties have an automatic right to extend settlement by up to 5 days. There are also other rights of extension in limited circumstances.
  • If you are buying a house or unit to live in, you will need to sign a duty form to obtain your concession. You may be entitled to a further, additional, concession if it is your first home. There are three particular requirements that you must comply with in order to be entitled to the concession:

  • You must move into the property within 12 months of settlement;

  • You must live in the property for at least 12 months;

  • If there are tenants in the property or a lease back to the seller, the tenants or seller must vacate within six months of settlement.

  • If any of the above do not apply, then you are not entitled to claim the concessional rate of stamp duty.
  • You should keep copies of the contract and settlement statements.

If you want a trusted team to help with your conveyancing matters, get in touch with Hensen Maxwell Solicitors.