Below, some frequently asked questions about conveyancing. For more information, contact Asset Conveyancing.
Q: What is conveyancing?
A: Put simply, conveyancing is the legal process of transferring the title of a property from one person to another.
Q: Why should I use a conveyancer?
A: Buying or selling property is one of the biggest financial transactions of your life. Due to the financial and legal aspects of transferring property, the consequences of making a mistake can be both costly and heartbreaking.
By having a licensed or registered conveyancer take care of your property transfer, their qualifications and experience can help protect your assets.
A licensed or registered Conveyancer is tertiary qualified and has an in-depth understanding of the law concerning property transactions, is required by law to carry professional indemnity insurance and fidelity insurance, and unlike certain solicitors that offer conveyancing, can focus solely on property transactions instead of other legal matters.
Q: What is the cooling off period and how does it affect me?
A: In some States, there is a legislative right for a Purchaser to “cool off” or cancel the Contract within a certain time frame after the agreement has been made. It offers some protection to purchasers that may have rushed into a contract to purchase property or simply change their mind.
The cooling off period does not always apply. For example:-
- if the property is purchased at auction
- if the property is purchased on the same day as the purchaser bid in an auction for the property
- if the purchaser waives their cooling off rights by providing a certificate signed by a conveyancer or legal practitioner who has briefed his or her client with regard to the implications involved of waiving the cooling off period
- if the purchaser is a company
- if the sale is by tender
- if the contract is made by the exercise of an option to purchase
Please note: As legislation regarding the right to “cool off” varies from State to State, enquiries should be checked with Asset Conveyancing before signing any Contract.
Q: What is a disbursement?
A: A disbursement is one of the expenses incurred during the process of searching and obtaining, title searches, plans, or certificates from government authorities or local councils etc.
Q: What happens if either party cannot settle on the due date?
A: Either party can issue a ‘Notice to Complete’ which means the other party has a reasonable time, usually 14 days (including weekends and public holidays), to settle the matter. This right may not be applicable under all Contracts particularly Contracts that make settlement “time of the essence”.
Extreme care should be taken before signing any Contract and the dates for settlement should be strictly adhered to at all times.
If the vendor is in default and fails to settle, the purchaser has the right to terminate the contract and is eligible to receive their deposit back. Alternately, the purchaser may apply to the Court to have the vendor complete the agreement and hand over possession.
If the purchaser is in default, the vendor is entitled to charge the purchaser interest for the number of days settlement is delayed. The contract usually stipulates the applicable interest rate. When a ‘Notice to Complete’ is issued and purchaser fails to complete, the vendor may terminate the contract and keep the deposit, and can legally place the property back on the market to sell.
Q: What happens at settlement time?
A: Settlement is the finalisation of the sale or purchase process. There are usually four parties involved – the buyer and sellers’ conveyancers and the banks for the vendor and purchaser.
On settlement, the purchaser’s bank will exchange cheques as per the instructions of the purchaser’s conveyancer and in return, receive the Certificate of Title and ‘discharge of mortgage’ (if applicable) from the seller’s bank.
If prior to settlement the property in question has been damaged, there is a sufficient amount of time to take care of discrepancies prior to settlement.
Once the settlement date arrives, the keys can be handed over to the purchaser and the deposit is released to the vendor. At this stage, the Purchaser’s bank registers the change of title and mortgage, and their conveyancer notifies authorities (such as the council) of the change.
Q: Who notifies the authorities that I have purchased a property?
A: After settlement, the purchaser’s conveyancer will notify the Council, Water authority and the Strata or Community Corporation (if applicable) of the new purchase. In Queensland & NSW, the lodgement of the Transfer with the Form 24 (Qld) and eNOS (NSW) triggers the notification to the statutory authorities. Other providers, however, will need to be notified by the buyer.