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Frequently Asked Questions in Conveyancing

  1. What is conveyancing?

Conveyancing is the legal process of transferring property from one owner to another.

  1. What is the difference between a lawyer and a conveyancer?

A Lawyer is a person who is trained to advise clients on their legal rights and obligations in a variety of circumstances, including the buying and selling of real estate and the conveyancing process. Real Estate Lawyers typically have more extensive knowledge of the law and can guide you through your contractual rights, the conveyancing process and assist in any disputes that arise along the way.

A Conveyancer who is licensed, is a person that only deals in the process of conveyancing, but are limited on what they can and cannot advise on.

  1. What is PEXA?

PEXA stands for Property Exchange Australia and is an ‘Electronic Lodgment Network’.

PEXA is a secure online platform that allows for property settlements and transactions to be conducted electronically, rather than the traditional paper based method. This includes, for example, transfers of land, mortgages, lodging plans of subdivision, applications by surviving proprietor or legal personal representative, caveats and more.

  1. What is “Cooling off” and how long is it?

A cooling-off period is a period where after the purchaser has committed to buying a home, they can change their mind and end the contract.

The cooling-off period is 3 business days from the day on which the contract was signed by the purchaser (not the seller).

It is important to note that there are some circumstances where the cooling-off period does not apply for example, where the property was purchased at a public auction or within three clear business days before or after the public auction.

If you do cool-off, there are also financial consequences i.e. the seller will have the right to retain $100 or 0.2% of the purchase price, whichever is greater.

  1. Do I need a Finance Clause in the Contract?

Where you do not have the funds available to purchase a property and you will be looking to a lender to provide such finance, unless you already have an approval in place, it is usually recommended (subject to your personal circumstances) that a ‘subject to finance’ clause be included in the Contract of Sale.

A subject to finance clause tells the vendor that you agree to purchase the property subject to the condition that your finance is approved. Where your finance is not approved, and provided the condition is drafted appropriately in the contract, you will usually be able to end the contract and receive a refund of any deposit made.

Essentially, having such a clause protects a purchaser from forfeiting their deposit if they are not able to complete settlement because they do not have sufficient finance and also ensures that they are not sued by the vendor for breaching the contract.

Including this condition in the Contract will protect you and allow you to withdraw from the Purchase in the circumstance that your loan application is denied.

  1. What is a Section 32?

A ‘Section 32’ is also known as a ‘Vendor’s Statement’.

It is a document that is required to be prepared by the seller which requires the seller to disclose certain information about the property. A Section 32 is provided to prospective purchasers prior and is required prior to an offer being made by a buyer.

  1. What fees will I have to pay at settlement?

Buying a home

  • Rates and taxes for the period that you own the property - Council rates, water rates, owners corporation fees (if applicable), land tax (if applicable)
  • Stamp duty
  • Lodging fees for the Transfer of Land
  • Lodging fees if you will be taking out a mortgage
  • Bank fees, if you will be taking out a loan
  • Disbursements – this may include property certificate fees and other expenses
  • Legal fees

Selling a home

  • Rates and taxes for the period that you own the property - Council rates, water rates, owners corporation fees (if applicable), land tax (if applicable)
  • Lodging fees if a mortgage needs to be discharged at settlement
  • Loan payout - bank interest and charges where you have a mortgage over the property
  • Disbursements – this may include property certificate fees and other expenses
  • Legal fees
  • Sales commission and marketing costs if you appointed a real estate agent for your sale, if not already paid
  1. What are Adjustments?

‘Adjustments’ or ‘Statement of Adjustments’ is a document that is ordinarily prepared by the purchaser’s representative prior to settlement and calculates the Rates and Taxes to be adjusted at settlement, together with any other adjustments under the Contract of Sale which may include, for example, an apportionment of rent, any penalties payable etc.

A Statement of Adjustments will also include a ‘Settlement Statement’ which will detail the purchase price, any monies already paid such as the deposit, the balance owing at settlement and then plus or minus the adjustments.

If you are a buyer or seller who requires advice or assistance in the conveyancing process, please contact our Real Estate Lawyers to assist you.

Insight written by Tamara Maksimovic and Kristy Muhlhan

 

Contacts

Kristy Muhlhan

Principal

Kristy Muhlhan

Principal
LL.B (Hons) GRAD DIP. L.P., GAICD.
Since 2014, she has been an owner and Principal of the firm and has mastered a broad range of essential commercial and business skills which go hand in hand with the work she does for...

Tamara Maksimovic

Lawyer
LL.B
Tamara’s role is primarily in residential conveyancing.

Sandra Le

Associate

Sandra Le

Associate
LL.B BCom
Sandra is professional and takes exceptional care with every matter she undertakes and is a natural problem solver.

Stewart Davis

Associate

Stewart Davis

Associate
LL.B (Hons) B.Com
As well as property law, Stewart has had exposure to VCAT administration matters and commercial law, particularly servicing developer clients.

Emma Dickens

Paralegal

Emma Dickens

Paralegal
Emma previously completed a Bachelor of Legal and Dispute studies at RMIT University in 2015.

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