What you Need to Know – the Pitfalls in Conveyancing
- Initial Deposit and Balance Deposit. How is this to be paid by cash or bank guarantee? When is it payable?
- Is the Contract being purchased in the correct entity?
- Is the property tenanted? Does the buyer need vacant possession?
- Included or excluded fixtures and chattels – must be stated on the Contract.
- Special Conditions – ensure that conditions are practical i.e. dates to fall before settlement. Must specify who is to comply with condition meaning the Buyer or Seller? For example who is to organise the Body Corporate approval of pet?
- Does the property have new structures which would need Council Approval?
- Specify days in the conditions rather than weeks i.e. 30 days rather than 4 weeks.
- Amending or terminating the Contract – fully executed Contracts are binding. Changes must be made either by written correspondence or by formal agreement. Consult a Solicitor first.
- Should it be made subject to the sale of an existing property which you may be relying on funds for to complete this new purchase?
Handy Clauses to be included in Contracts
In the event that any of the search results and due diligence enquiries are not to the satisfaction of the Buyers in every respect, the Buyers may terminate this Contract by giving notice in writing to the Seller or its Solicitors within 14 days from the date of this Contract and all monies paid by way of deposit or otherwise will be refunded to the Buyers.
In the event that the Seller does not obtain the written approval of the Body Corporate within 14 days then the Buyer may terminate this Contract by giving notice in writing to the Seller or its Solicitors within 14 days from the date of this Contract and all monies paid by way of deposit or otherwise will be refunded to the Buyer in full immediately.
In the event that the results are not to the satisfaction of the Buyers in every respect, the Buyers may terminate this Contract by giving notice in writing to the Seller or its Solicitors within 14 days from the date of this Contract and all monies paid by way of deposit or otherwise will be refunded to the Buyers.
From the time of taking early possession the Buyer must insure the property and take out public liability insurance to cover any damage or injury that may arise from the works. The Buyer agrees to conduct all works in accordance with the requirements of the local authority.
In the event that the Buyer defaults on the Contract , the Buyer must ensure that the property is left in a clean and tidy state and the property will vest in the Seller without the Buyer be entitled to be compensated for any loss in performing the works.
The Buyers will have 72 hours from the time and date of receipt of such notice to inform the Sellers in writing that they will make the Contract unconditional.
In the event that the Buyers do not give the required notice within the stipulated time then this Contract will be at an end and the deposit monies will be refunded to the Buyers in full.
Electronic Settlements
Settlements are moving in a new direction with the introduction of online property settlements. Settlements will be completed through a secure process involving the transfer of funds via the Reserve Bank of Australia to destination accounts. These transactions will benefit buyers and sellers with funds being cleared in their accounts following settlement some times within an hour of the transaction taking place. In today’s online world, why would you wait days for a cheque to clear?
Not all law firms are on board as yet with the settlement system but Just Us Lawyers is and we are ready to move forward to assist our clients with getting the quickest results with their settlements.
Stamp Duty
Stamp duty is a type of tax that you may have to pay if you are buying a property. So how do you know if you’re required to pay and how much it will cost?
Generally speaking, if you are a first-time buyer, then you may be eligible for a concession, but if this is an investment or second home, then stamp duty needs to be factored into your budget. And the main thing to note is that stamp duty is additional to the cost of your home.
Use the Stamp Duty Calculator.
If you would like information on how to use this calculator please telephone our staff who would be happy to assist with your enquiry.
Super Fund Transactions
Are you one of many Australians who use their Self-Managed Super Fund (SMSF) to purchase investment properties?
SMSF transactions, whilst following the same conveyancing process, can be more complex than residential transactions depending on whether you are paying cash or obtaining finance.
When purchasing a property using your SMSF, care needs to be taken to ensure the purchasing entity recorded on the Contract of Sale is correct, as this can otherwise hold up the loan approval process with your financier.
We can assist you by giving pre-contract advice prior to you signing a Contract of Sale and also with the conveyancing process for your SMSF, whether you are paying cash or borrowing funds.
Please call our Conveyancing Team on 07 3369 7145 to discuss your SMSF needs.
Retirement Village Transactions
Buying into a retirement village is a very different process to buying a house and can be done by either:
- Buying the freehold title to a unit;
- Leasing the unit under a long term lease; or
- Holding a licence to occupy the unit.
Each of these methods has advantages and disadvantages which should be considered carefully by you, ideally after you have taken legal and financial advice.
Each Retirement Village has its own Public Information Document which details the rights and obligations of both you as a resident and the operators of that Retirement Village. It is important that you obtain legal advice so that you properly understand the nature of what you are signing and the rights and obligations that you will have. We are able to help you understand this document so that you can make an informed decision.
Property Developments
We can advise you on Development Applications and appeals. We can assist you to draft and register sub-divisions and easements. We can assist you to draft off the plan contracts and act for you in multiple settlement transactions.
We can represent you in the Environmental and Land Court to deal with objections to any DA.
Most importantly we can assist you to navigate through Cultural heritage protection legislation which is an area often over looked by developers and if not handled correctly can halt your development. Did you know for example that an Aboriginal Party can obtain an injunction in the Land Court to stop your development if there is a danger that cultural heritage will be harmed?
For more information please refer to our Development Applications, Cultural Heritage and Environmental Legislation Compliance.
Other considerations
We make the Estate Planning process simple and easy for you to understand, so that we can help you to design an estate plan that makes sense to you and avoid the complexities and expense of poor planning.
We work with individuals, couples and families, to prepare Wills and Enduring Powers of Attorney, taking into account superannuation, business interests and family law considerations.
We will assist you with the process of reality testing all aspects of your estate plan, to ensure that your wishes will be effected under your Will.
For more information please read the Wills, Estate Planning and Administration page.
We can also help you to establish Body Corporates for the purpose of holding common property for Community and Group Titles.
For more information please read the Commercial and Corporate Law page.
Other Useful Links
Stamp Duty Calculator – if you would like information on how to use this calculator please telephone our staff who would be happy to assist with your enquiry
