Property Conveyancing in Sydney

Conveyancing FAQs

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Buying information for clients

Sale of land

Real estate agents must maintain a complete sales contract for any residential property at all times. This contract should be available for potential buyers to pursue and seek legal counsel. It includes all the necessary details pertaining to the property and is accompanied by a zoning certificate from the local council. This certificate provides information on whether the property is zoned for residential or other purposes. The contract also includes a comprehensive title search that reveals any restrictions or easements that may impact the property’s usage and any mortgages or liens affecting the property’s title. In addition, a sewer diagram must be included to determine whether the sewer main intersects the property and, if so, where.

However, not all of the property’s sale information will be included in the contract. Certain legal matters mandated by legislation may not be explicitly spelled out in the contract, so it is wise to consult a lawyer to understand the implications of the contract before signing it. The contract date determines the settlement or completion date, which usually includes a 42-day (or six-week) period for settlement to occur. This time frame is negotiable and should be discussed with a lawyer before signing, mainly if the contract involves simultaneous sale and purchase transactions.

The contract also includes a list of all inclusions being sold with the property. Verifying or negotiating these terms with a lawyer before signing the contract is essential to ensure that all included items are in working order and as expected.

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Building and pest inspections

Before committing to purchasing a property, deciding whether to conduct any inspections on the property is crucial. The sales contract only covers title matters and does not address the quality of the buildings on the property. When buying a house, it is essential to know that the building is structurally sound and free of any structural pests, such as termites. It is reasonable to expect that any building that is not brand new may have some minor defects that can be visible during a personal inspection.

A professional building inspection can identify these minor defects, but more importantly, it can reveal any structural problems that may not be apparent to the untrained eye. It can also report on any drainage issues. On the other hand, a pest inspection can report on the presence of any structural pests that may be present or advise on any pest activity affecting the property. Note that this report only covers structural pests and may not mention other ones like cockroaches and mice.

It is highly recommended to obtain both a pest and building inspection. These reports provide peace of mind and are relatively affordable compared to the property’s price. Ensure that you choose inspectors who carry Professional Indemnity Insurance to protect you in case of any oversight or error that may have negative implications. It is also advisable to use inspectors recommended by someone you trust to guarantee their competence and work quality.

Finance

Before applying for a loan, you should budget to determine how much you can afford to pay each week on loan repayments. There are many places you can apply for a loan, banks, credit unions, mortgage lenders or a finance broker. There are so many different types of loans it is difficult to be in a position to understand all the complexities of the different types of loans. It is wise to shop around and do your homework before you apply so that you have an idea of what is being explained to you.

If you have decided on which type of loan you require, you can apply directly to your chosen finance provider. If you are unsure, it may be a good idea to consult a finance broker. Finance brokers have access to many banks, credit unions and mortgage lenders and can find the loan that best suits your needs. Usually, there is no extra cost for using a broker because the finance provider pays the broker’s fee for referring the loan to them. You only pay a fee to a finance broker if a loan is arranged for you or cannot be.

Be aware that different institutions pay different commissions to brokers, so it is always possible that the loan you are referred to may not be the best for you but be the best commission paid to the broker.

With finance institutions offering generous loans as 100%, you should be aware that these types of loans and any loan that is more than 80% of the valuation of the property there will be mortgage insurance to be paid. This insurance insures the lender, not you. The premium depends on the loan-to-valuation ratio and increases as the loan gets closer to the valuation. It is an extra expense you may not have allowed for and can be several thousand dollars depending on the loan amount. For this reason, you should have done some homework to know what rates are available when applying.

Strata scheme inspection

Exchanging contracts

Exchanging contracts is a crucial step in the process of buying and selling property in many countries, including Australia. It represents the point at which the transaction becomes legally binding on both the buyer and the seller. Before this point, either party can withdraw from the transaction without penalty. However, once the contracts are exchanged, both parties are committed to completing the sale or purchase.

It’s important to note that the process of exchanging contracts may differ depending on the country, state, or territory, and it’s always a good idea to seek professional advice from a conveyancer or lawyer.

Cooling off period

If for any reason, the purchaser decides not to proceed with the purchase, they have the right to rescind the contract within five days. Once the contract is rescinded, neither party has any further claim against the other. However, in such cases, the purchaser is required to forfeit 0.25% of the sale price to the vendor.

To expedite the process, the purchaser can waive the cooling-off period by having a solicitor explain the contract and then signing a certificate to that effect. This certificate, known as a “Section 66W certificate,” is prepared under Section 66W of the Conveyancing Act. If the certificate is handed to the seller’s lawyer, the cooling-off period will be shortened to the number of days agreed upon by both parties. Alternatively, the cooling-off period can be shortened by a condition in the contract.

It’s important to note that there is no cooling-off period if the property is sold at a public auction or on the same day it is listed for auction. This means the purchaser must be absolutely certain of their decision to buy the property before bidding at the auction.
In conclusion, the cooling-off period provides an important safeguard for the purchaser of residential property. It allows them to reconsider their decision and, if necessary, withdraw from the contract without facing legal consequences. However, it’s important to understand that the cooling-off period can be shortened or waived under certain circumstances.

Insurance and property

The seller of a property is responsible for any potential damage to it until completion, or until the purchaser takes possession of the property if that occurs prior to completion. Up until completion, the seller is liable for the upkeep and maintenance of the property, and it should be handed over in the same condition as it was at the date of exchange, with the exception of normal wear and tear.

If the property is significantly damaged before completion, the purchaser has the right to rescind the contract and receive a refund of the deposit, provided that they do so within 28 days of becoming aware of the damage. However, if the damage is minor, the purchaser may choose to proceed with the purchase, subject to an adjustment in the sale price to reflect the cost of repairs.

It’s important to note that the condition of the property is a significant consideration in the sale of a property, and both parties have a responsibility to ensure that the property is in good condition at all stages of the transaction. This helps to avoid any potential disputes or disagreements and ensures a smooth and successful sale.

Water and council rates, strata levies

The Contract provides that council rates be adjusted between the vendor and purchaser as of the settlement date. Council rates are levied for the financial year. They will be adjusted so that the vendor pays the rates up until the day of settlement, and the purchaser will be liable from then until the end of the rating period, in this case, the 30 June. They are adjusted as if the rates are paid in full regardless of whether they are in fact, paid or not.

Any outstanding rates are paid from the sale proceeds (being the vendor’s money). The rates are a charge on the land and any outstanding rates become the liability of the purchaser, so it is essential that they are paid up to date at settlement. Council rates may be paid in installments but are an annual levy, and hence it is standard practice to adjust the rates for the next full year not according to what installment may be due next.

One of the inquiries certificates the purchaser’s conveyancer will obtain is from council and sets out the amount of the annual rates, what payments have been made and what is outstanding.

Water rates

In some country areas, the water rates are paid to the council and may be incorporated within the council rates. In other areas where an independent water authority supplies the water and/or sewer, these rates must be adjusted at settlement.

The adjustment made for water rates at settlement will be for the portion of the quarterly rates that apply from the settlement date to the end of the quarter. If the vendor has already paid the full quarter’s water rates, they will receive a credit for the portion of the quarter that the purchaser will be responsible for, and the purchaser will be required to pay the vendor for that portion. On the other hand, if the vendor has not paid the full quarter’s water rates, the purchaser will be responsible for the full quarterly rate from the settlement date onwards and will need to pay the outstanding amount to the water authority. The water usage charge, if applicable, is also adjusted in the same way.

Pre-settlement inspection

It is important to note that the pre-settlement inspection should be conducted with the seller’s permission, and the real estate agent should be present during the inspection.

During the inspection, the purchaser should check the property thoroughly to ensure that it is in the same condition as when the contract was signed, including all inclusions and fixtures. This may include checking appliances, light fittings, taps, and other items included in the sale. The purchaser should also check for any damage or changes to the property, such as new holes in walls or scratches on floors.

If the inspection reveals any problems or issues, the purchaser should bring these to the real estate agent’s or seller’s attention as soon as possible. If necessary, the parties may need to negotiate a resolution to the problem before a settlement can take place. This may include the seller repairing or replacing any missing or damaged items or adjusting the purchase price to account for any issues. In some cases, the settlement may need to be delayed until the issues are resolved to the satisfaction of both parties.

Overall, the pre-settlement inspection is an essential step in the property-buying process that can help ensure a smooth and satisfactory settlement.

Deposit

One of the essential requirements in a property sale contract is the payment of a deposit on or before the contract date. This deposit amount can vary, but typically it is 10% of the sale price. The buyer usually pays the deposit to the estate agent, who holds it in trust as a stakeholder until completion. If a holding deposit has been paid before the exchange of contracts, it becomes part of the 10% deposit, and only the balance is paid on the contract exchange.

The estate agent is responsible for holding the deposit in trust for both the buyer and seller and cannot release it without the consent of both parties. Usually, this consent is given at completion so the agent can account to the seller. The agent will deduct their commission from the deposit amount.

If the buyer fails to pay the deposit on the contract exchange, or if the bank dishonours the deposit cheque, the seller can rescind the contract until the buyer rectifies the deposit payment. If the buyer defaults on the deposit payment, the underwriter guarantees the payment. A deposit bond is an alternative to a cash deposit, which guarantees that the deposit will be paid on completion. A deposit bond is generally used when the buyer sells their property, borrows 100% of the purchase price, or does not have a cash deposit. Your lawyer may be able to issue a deposit bond on your behalf.

Stamp duty

Stamp duty is payable on the contract. Stamp duty is not payable on mortgages securing a loan for owner-occupied housing. Stamp duty on investment housing will be abolished from 1 July 2008 and on other mortgages from 1 July 2009. The duty payable on the contract is calculated on the sale price, the higher the price the higher the duty.

It is the purchaser’s responsibility to pay the stamp duty. This must be done before completion if you are borrowing money and in any event within three months of the date of the contract or a fine is payable for late payment.

The scale of duty payable on the contract is:

Property Value not exceeding $14,000.

Rate of Duty is $1.25 per $100 with a minimum of $10.00.

Property Valued between $14,000-$30,000.

Rate of Duty is $175.00 plus $1.50 per $100 in excess of $14,000.

Property Valued between $30,000- $80,000.

Rate of Duty is $415.00 plus $1.75 per $100 in excess of $30,000.

Property Valued between $80,000 – $300,000.

Rate of Duty is $1,290.00 plus $3.50 per $100 in excess of $80,000.

Property Valued between $300,000- $1,000,000.

Rate of Duty is $8,990.00 plus $4.50 per $100 in excess of $300,000.

Property Valued Over $1,000,000.

Rate of Duty is $40,490.00 plus $5.50 per $100 in excess of $1,000,000

Property Valued Over $3,000,000.00.

For residential Property Rate of Duty is plus 7% of that part exceeding $3,000.000.00 Plus the following – Duplicate contract $2.00 – Transfer $2.00

Strata levies: unit, townhouse and villa

If you are purchasing a lot in a strata scheme, you will need to adjust the quarterly strata levy. The quarterly levies can begin at any time and are not necessarily aligned with the quarters of the calendar year.

The levies may be adjusted in the same manner as council rates, and there may also be special levies to consider. If a special levy is struck before the date of the contract, the seller is responsible for paying it in full. If a special levy is struck after the date of the contract, it is adjusted between the seller and buyer.

It is recommended to conduct a strata inspection to identify any intended special levies, but this cannot always be relied upon. It is important to take the necessary steps to adjust the strata levies to avoid any financial surprises after settlement.

Settlement

The settlement date is primarily determined by the contract exchange date and is typically set at 42 days after that date. However, if both parties mutually agree, a settlement can occur on an earlier or later date. Usually, contracts incorporate a provision that if the settlement is delayed due to no fault of the seller, the purchaser will have to pay interest to the seller as compensation for the delay in the settlement. Nonetheless, there is typically no penalty imposed on the vendor for delaying the settlement.

Suppose the settlement date is not convenient for you when signing the contract. In that case, you should immediately discuss it with your lawyer. After the contract has been exchanged, it will be too late to negotiate a new settlement date after the contract has been exchanged unless the vendor agrees to it by chance. The settlement date and time are determined based on the availability of all parties involved in the transaction. Your lawyer or legal representative will attend the settlement on your behalf, and it is not customary for you to be present.

As a simple property purchase settlement typically involves at least four parties and more if one or more parties are simultaneously selling and buying a property, it may not always be feasible to schedule a morning settlement. The settlement venue is determined by the entity or person who holds the property deeds, which is typically a discharging mortgagee. The usual attendees at a settlement will be the buyer’s lawyer, the buyer’s lender, the seller’s lawyer, and the seller’s discharging lender.

The settlement marks the point at which the property deeds are transferred to the buyer, and the sale price is paid. Your lender will hold the title deeds and other pertinent documents until the loan is repaid. Your lender is responsible for registering your property ownership with the Land Titles Office, which should be done shortly after the settlement date.

What you need to do before settlement

Prior to the settlement date, it’s essential to prepare a comprehensive list of all the places that need to be informed of your change of address. You should ensure that this is done immediately after the settlement takes place. However, it’s not advisable to do this before settlement since there may be a delay in the settlement process.

As the settlement venue may not necessarily be close to your lawyer’s office, any outstanding payments that need to be made by you should be drawn and handed over to your lawyer one day before the settlement date. Your lawyer will inform you in advance of whom the payment should be made to and the date by which it needs to be submitted. It’s essential to note that due to the procedures followed by some financial institutions, the final cheque details may not be known until the day before settlement. Hence, you should be prepared to receive the information and provide your lawyer with the final cheque details on short notice. While this may not be very convenient, it’s usually unavoidable.

Moving in

It is standard practice that occupation of the property is only granted after the settlement has been completed unless some other arrangement is made. You should only assume that the seller will allow you to move in after settlement even if the property is vacant.

Because you may not have a firm time and date for settlement when you want to book the removalist, it isn’t easy to organize the time for the removalist to arrive and load and then arrive at your new property, coinciding with the settlement time. Unfortunately, this is a fact you have to deal with, and it may be best to arrange for the removalist to make an afternoon move instead of paying the removalist to sit and wait for confirmation to unload.

Buying with an existing tenant

After the settlement has been completed, the buyer immediately takes on the role of the landlord if there is a tenant in the property with a current lease. The existing lease remains in force, and the new landlord is obligated to follow the terms of that lease. If the buyer wants the tenant to vacate the property, they must serve a notice of termination, which must allow the required period of time, depending on when it is issued.

When the fixed term period is due to expire, either party can give 14 days’ notice to end the tenancy, and it can be served at any time up to the last day of the fixed term. After the fixed term has expired, if the tenant wants to give the notice to terminate, they must provide at least 21 days’ notice, while the landlord must give at least 60 days’ notice. If the property is sold and the fixed term has expired, the landlord must provide at least 30 days notice of termination after the date of the contract.

The rent needs to be adjusted when the tenant remains in the property. The buyer’s lawyer will determine what adjustments need to be made. If the rent is paid in advance, the seller will give the buyer credit in the settlement figures for the portion of the rent already paid to the seller that applies from the day after settlement. If the rent is in arrears, no adjustment is made, as the purchaser is not expected to take over a debt owed to the previous owner. The managing agent typically makes the rent adjustment, as they often collect rent weekly but account monthly to the landlord so that they could be holding rents in their trust account.

It is important to note that the buyer should not assume they can take possession of the property before settlement, even if it is vacant. Additionally, the buyer may find it difficult to organize a move with a specific time and date for settlement, making it best to arrange for an afternoon move rather than paying for the removalist to sit and wait for confirmation to unload.

Land tax: investment properties and holiday homes

If you are buying an investment property or a holiday home, you may be liable for land tax. Land tax is only payable where the value of the land is above the land tax threshold. Where more than one taxable property is owned, the cumulative value of all land must be above the threshold. In 2008 the averaged land tax threshold was $359,000.00.

Land tax generally does not apply to your principal place of residence or primary production land. If you think you may be liable for land tax, you must register with the Office of State Revenue (OSR).

Registration can be done online at the OSR website www.osr.nsw.gov.au or call 1300 139 816 for more information.

Buying off the plan

It is common for strata units to be offered for sale before their construction is finished, and the process of purchasing a strata unit under such circumstances is commonly referred to as “buying off the plan”.