RMB Lawyers can provide all your conveyancing needs.
The following provides you with a snapshot of items to consider whether you are selling or buying.
The stages in selling your home:
Before You Sell
Prior to putting your property on the market, you must have a contract prepared by your Solicitor. It is an offence under New South Wales law to list a property for sale without having a contract. We are aware that this is often a time sensitive situation and endeavour to have your contract prepared and delivered to your estate agent within 24 hours of receiving your instructions.
The Conveyancing Act in New South Wales advises that your contract must contain certain mandatory information. These obligations are known as vendor disclosure requirements and require a contract to annex the following:
- A title search;
- The deposited plan;
- Restrictions on use of land;
- Easements. Rights of Way or Covenants;
- A Zoning Certificate from a local Council which shows, amongst other things, certain items that may affect the property such as land slip, flooding, or bushfire risk, and also comments on the zoning and planning controls for the property;
- A drainage diagram showing the location of the sewer line;
- A Pool Registration Certificate along with a Pool Compliance (or non-compliance certificate) for your swimming pool or spa.
- If you are selling a property under strata title, you will also need to provide information on the strata lot and common property, along with any by-laws affecting the unit or apartment.
We will talk to you in detail about these requirements and discuss whether the contract needs to be tailored further to your situation.
At RMB Lawyers we take pride in ensuring that the terms of the contract are not only satisfying your legal requirements but also ensuring that your best interests and particular requirements are taken care of.
Exchange of Contracts
Exchange of contracts for most lawyers is often the most important and crucial part of your sale, in that the terms of the contract have now been set and a binding contract has been created.
Exchange of contracts can typically occur in two main ways:
- Where the Solicitors for the seller and buyer meet to swap the contracts (this can also be done electronically in many cases). The deposit is typically paid to the estate agent at this point and the contract is then dated and exchanged.
- At an auction the exchange of contracts occurs following the fall of the hammer and the acceptance of the purchaser's bid.
Once the contract is binding, a settlement date is set.
We will discuss with you at or prior to this point any obligations that you may have in relation to GST, Capital Gains Tax, and also help assist with the arranging of the discharge of a mortgage that you may have over your property.
The purchaser's Solicitor will also raise what are called "Requisitions on Title" which are a long list of questions relating to the sale of your property. We will help answer these for you and ensure that your legal rights are protected.
Completion of the Sale
Prior to the settlement of your sale, we will have discussed and finalised with the purchaser's Solicitor any adjustments to council rates, water rates and strata levies. We will obtain a payout figure from your discharging mortgagee and will provide you with a statement setting out all figures relating to your sale.
We will attend a settlement on your behalf where the Solicitors for the seller and buyer meet, along with respective banks to finalise your sale.
We will then call you following settlement and make arrangements to have the proceeds of sale deposited into your account, or alternatively draw cheques as directed by you.
From start to finish during your sale we feel that communication with you is of paramount importance and we will make ourselves available to you via all forms of modern communication.
Your purchase of property can be broken down into the following stages:
Before Exchange of Contracts
In choosing to buy your property, you can purchase the property in a number of ways;
- Private treaty – this is the most usual way in which to buy a property.
- Purchasing at auction – there can be many pros and cons for purchasing at auction and we will discuss with you the various tactics involved when considering to buy at auction.
- Purchasing "Off the Plan" – at RMB Lawyers we act for many developers and understand the pressure points that exist for the purchaser as opposed to the developer.
Prior to exchanging a contract for the purchase of your property, you will need to consider three main elements in your purchase:
We will check with you many items in the contract including that the front page of contract clearly captures the essence of the deal struck between you and the seller, the legal terms and the significance of those on your purchase, and the searches that are contained in the contract will be discussed and reviewed with you in detail.
We will discuss the following documents with you:
- The title search and plan for the land, along with copies of any documents restricting use of the land, easements, rights of way or covenants. If the property is a strata property we will also discuss the strata plan, common property and by-laws relating to the complex.
- The zoning certificate from Council.
- Sewerage diagram.
We will ensure that the contract is tailored to your particular circumstance and structured in a way that is beneficial to you and your purchase.
Investigation of the Physicality and Legality of Structures
A key provision of your contract says that you must make yourself aware of what you are buying and that you buy the property "as is". We will discuss with you the various reports that you may need, and these can include:
- Pest and building reports;
- Strata inspection reports;
- Survey report;
- Building Information Certificate from Council;
- Home Owners Warranty insurance;
- Occupation Certificates relating to either a new dwelling or any extensions done to the property;
- Pool Compliance Certificate.
Prior to exchange of contracts you will need to ensure that you have formal loan approval to purchase the property.
We will also explain to you your obligations under your loan contract and mortgage.
Exchange of Contracts
Once we have reviewed the contract with you, received satisfactory reports and you have received formal loan approval, we will arrange exchange of contracts with the seller's Solicitor. At this point, you will need to pay the deposit (usually 10% of the total price). This can be done via electronic transfer or cheque. Following exchange of contracts, the contract is binding, subject to the statutory cooling off period which is five (5) working days from exchange (in some cases you may elect to waive the cooling off period).
Finalising Your Purchase
Between exchange and settlement we will undertake the following:
- Government searches and enquiries to ensure the property is sold to you free of any affectation. We will advise you if anything is discovered which you should be concerned about.
- We will raise with the seller's Solicitor requisitions on title which will ask the vendor pertinent questions in relation to the property. If the vendor has failed with their disclosure requirements and warranties, we will discuss with you your options to either rescind the contract or seek compensation from the vendor.
- We will calculate and arrange payment for your stamp duty obligations along with providing assistance to claim any stamp duty exemptions that may be applicable at the time of your purchase.
- We will remind you of your rights to a final inspection at the property prior to settlement. The property must be in the same condition (subject to 'fair wear and tear') as the property was as at the date of exchange. The vendor cannot remove any of the inclusions or agreed items as stipulated in the contract.
- In the week leading up to settlement we will discuss with you the finalisation of the settlement figures and liaising with your bank and the seller's Solicitor to meet on the day of settlement.
We will then attend settlement on your behalf and call shortly after settlement has taken place to give you the good news.
RMB Lawyers is one of only a few firms which can offer our clients conveyancing advice and services for property purchases across Australia. Whilst the process of buying and selling property is similar in most jurisdictions, there are important differences in the law in place in each state and territory. Failing to understand the nuances and the different rights and obligations on purchasers and vendors can have significant ramifications.
Our team have extensive experience across the broad spectrum of property law in Australia and have assisted clients with purchasing and selling property in every state and territory in the country.
At RMB Lawyers we are well versed in dealing with all manner of property related issues. We have accredited specialists in property law that can assist you with the following:
- Development Planning
- Joint Ventures
- Development and Project Management
- Easements and Subdivisions (Section 88B)
- Easement Disputes (Section 88K)
- Strata Title/Company Title/Community Title
- Structuring and Tax Options
- Old System Title/Title Conversions
- Possessory Title Claims
- Rural Conveyancing (including farm sales, generational handover, subdivision)
- Co-ownership and Tenancy Disputes (Section 66G).
If you would like to contact one of our expert conveyancers for further information, please feel free to contact us by calling 1800 681 211.