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Conveyancing And Property

Almost everyone buys and sells property at some time in their life, and it can often be an expensive and stressful process if not done right.

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How to prepare for an auction

The following are our top 5 tips if you are looking to buy a property at an auction:

  1. Be prepared – attend as many auctions as you can so you get a feel as to how they work.
  2. Speak to the bank – it is important to understand your borrowing power as the contract will not be subject to you getting finance.
  3. Conduct building and pest inspections – once the hammer falls you are locked in to buy the property as is and you will have no right to get such inspections or get out of the contract if you’re not happy with the property.
  4. Register to bid at the auction – don’t forget your drivers licence or passport!
  5. Engage a law firm to do the conveyancing.

What should you do after signing a contract to buy a property?

If you have just signed a contract to buy a property, you should take the following steps as soon as possible:

  1. Take out insurance – the property is now at your risk and you need to obtain a cover note for the property from your insurer.
  2. Hire a law firm to look after the legal side of things for you.
  3. Talk to your bank – start the application for finance as soon as possible so that there are not delays to settlement.
  4. Organise your building and pest inspection so you don’t miss the due date under the Contract.
  5. Diarise the due dates for confirming your finance approval, satisfaction with your building and pest report and settlement once your conveyancer notifies you of them!

What is the "cooling-off period" anyway?

Most people have heard the term “cooling-off period”, but what does it actually mean?

Put simply, the cooling off period is the time following entry into a contract for the purchase of a property during which the buyer may terminate the contract if they get “cold feet”.

Standard contracts in Queensland and some other States come with a cooling-off period of five days. That means a buyer can terminate the contract at any time during the five days following the signing of the contract.

However the cooling-off period does not apply to contracts entered into by auction, or contracts entered into within 2 days following an unsuccessful auction if the buyer was a registered bidder at the auction.

If the buyer terminates the contract during the cooling-off period, the seller must refund any deposit paid to the buyer. The seller may however deduct a penalty of up to 0.25% of the purchase price.

If the buyer wishes to terminate under the cooling-off period, they must do so in a certain way. It is always best for buyers to seek legal advice prior to terminating under the cooling-off period, as this may not be in the buyer’s best interests.

Don't forget your final inspection!

Standard contracts in Queensland and some other States provide buyers of property the right to do a “final inspection” of the property prior to settlement. The purpose of a final inspection is to allow the buyer to have one last viewing of the property in order to confirm they are satisfied that there are no issues and settlement can therefore proceed.

Buyers should undertake a final inspection for a number of reasons, including to:

  1. Confirm that any building and pest inspection requirements have been complied with (for example the buyer may have only satisfied the building and pest condition on the basis the seller would undertake certain works in relation to the property prior to settlement);
  2. Check that all items included in the contract are still there (for example the seller might have agreed in the contract to leave the dishwasher on the property);
  3. Confirm the property is vacant (this is particularly important in the case where the property was sold with a tenant in place that was required to vacate prior to settlement); and
  4. Confirm the property is still in the same condition as it was sold in.

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Building and Pest Inspections

Most contracts for purchase of a property contain a condition that the contract is subject to the buyer being satisfied with the building and pest inspections. Despite this condition, sometimes buyers waive their right to undertake such inspections. It is always recommended for a buyer to undertake building and pest inspections. Issues to look out for in the reports are:

  1. Structural damage;
  2. Termite or other pest presence and damage;
  3. Rot damage;
  4. Asbestos problems;
  5. Confirmation the smoke alarms are working;
  6. Other damage or issues.

If you aren’t happy with the results of the building or pest inspections, you have several options, including the right to:

  1. Terminate the contract if the damage is substantial;
  2. Request a reduction in the purchase price; or
  3. Request the seller prior to settlement undertake certain repairs on the property.

Stamp Duty/Transfer Duty Explained

Stamp duty, also known as transfer duty, is a tax imposed on the purchase of certain property in Australia. Most people first experience stamp duty when they buy a home, as it is imposed on purchases of residential property.

Stamp duty increases depending on the value of the property that is purchased.

In Queensland (and in other States from time to time) there are three stamp duty concessions which are outlined below:

  1. First home buyers concession – as the name suggests, buyers of their first property where they intend to live in the property as their home for a certain period of time do not pay any stamp duty.
  2. Home concession – buyers of property that is not their first home pay a reduced rate of stamp duty.
  3. First home vacant land – buyers of vacant land on which they will construct their first home pay a reduced rate of stamp duty.

Doing your own conveyancing

Sellers and buyers of property frequently ask whether they should undertake their own conveyancing. The answer is that sellers and buyers should not undertake their own conveyancing unless they:

  1. Have a good understanding of the standard terms and conditions contained in the REIQ Residential Contract (or the equivalent in other States if not in Queensland) and their rights and obligations under any applicable legislation;
  2. Understand the concept of “time being of the essence” and have time to quickly deal with any issues that may arise;
  3. Understand what documents must be prepared, including land transfer forms; and
  4. Know what documentation to take to settlement and what must be collected and checked at settlement.

Generally it is always best to engage a law firm to act on your behalf during a conveyance to avoid any issues and to protect your interests. Conveyancing fees are competitive and the small outlay is worth the investment by saving you a lot of time and money if anything goes wrong.

The difference between a lawyer and a conveyancer, and which should you use?

A lawyer is a person who holds a law degree and can act on your behalf in various types of legal matters, including conveyancing. On the other hand, a conveyancer may only act for you in a conveyance of a property, and generally a conveyancer must either be:

  1. Supervised by a lawyer; or
  2. Hold the requisite licences and be qualified to practice conveyancing.

Which condition is required to be satisfied by a conveyancer will depend on the State in which the conveyancer is located. For example, a conveyancer practicing in Queensland must be supervised by a lawyer at all times, whereas in New South Wales a conveyancer can hold a conveyancing licence and does not need to be supervised by a lawyer.

You should consider the following when deciding between a lawyer or a conveyancer to do your conveyance:

  1. If the conveyancer is not supervised by a lawyer, can the conveyancer provide you with evidence that they hold the requisite licence?
  2. Are you likely to need any additional legal work done at the same time as your conveyance? For example, you may wish to update your Will in light of your purchase or sale, or get a power of attorney put in place so someone can sign documents on your behalf if you go away. In this case it may be simpler and more cost effective to go through a lawyer for your conveyance, as they will be able to help you with your additional legal requirements at the same time whereas a conveyancer will not;
  3. A conveyancer’s insurance is limited to the scope of conveyancing. As a result should a conveyancer operate outside the scope of a conveyance, for example by giving you advice, you may not be able to claim on their insurance should something go wrong. On the other hand a lawyer has full professional indemnity insurance, meaning you are covered for any advice or legal services provided to you by the lawyer.

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