Entering into a contract to buy or sell a home can be a very important transaction for most people. The process of putting your house on the market, looking for the right property, waiting for buyers, negotiating through an agent, making an offer, signing a contract and then undertaking conveyancing is a stressful process. It is critical to make sure that the legal processes including entering into the contract, engaging with your bank, and arranging settlement run smoothly and that legal title is transferred as you expect it to be.
On this page you will find information about the following:
The Conveyancing Process
The steps during a standard conveyancing process are:
- Preliminary Steps
If you are selling your house your preliminary steps will involve getting your house ready for sale and finding a Real Estate Agent to assist you with that process.
If you are buying a property you will be out and about inspecting properties to find the property that is suited to your needs.
There will be inspections of the property. You may decide to undertake a building and pest inspection at this time.
You may decide to speak with your bank if you are buying a property to have preliminary discussions about how much you can borrow to complete your contract.
There will be discussions in which the Real Estate Agent acts as an intermediary between the buyer and seller.
- Entering into a Contract for sale
When you have reached agreement about the sale / purchase of the property the Real Estate Agent will usually draft the contract. Both parties to the contract generally nominate a solicitor to act for them in the conveyancing for the contract.
You will generally be required to pay a deposit to the Real Estate Agent on the signing of the contract.
We recommend seeking legal advice before you sign the contract though that is not always possible. See further below under “When should I speak to a lawyer?”
You should notify your bank if you are purchasing that you will need formal finance approval. If you are selling you should start to take steps to notify any bank which will need to release a mortgage over the property.
- Carrying out the terms of the Contract
During the conveyancing process the steps taken by a seller and buyer will be different.
You will need to notify you bank if there is a mortgage over your property straight away so that they can begin the process of preparing the mortgage for release at settlement. This process takes some time as banks have internal processes which must be followed. The earlier you can undertake this process, the smoother your settlement will be.
You should ask your bank for a form which is usually called “Request to Discharge / Release Mortgage”. This form should be completed and signed by all mortgage holders. You should note the details of your conveyancing lawyer on this form so that the bank has authority to liaise with your lawyer and organise settlement.
The agent will liaise with you to arrange access to the property for any building and pest inspection along with any pre-settlement inspection.
You will also need to arrange removalists to ensure that the property is vacant at settlement.
The buyer’s lawyer will prepare transfer documents in preparation for settlement and you will need to sign those before settlement on the promise by the buyer’s lawyer to hold onto those transfer documents pending settlement.
You have a 5 day cooling off period within which to consider whether the purchase of the property is what you had intended. You should seek legal advice about you rights and obligations during this time.
As buyer you have much to do to satisfy yourself about the property. You should, if you haven’t already, organise a building and pest inspection to occur. This will be arranged with the Agent at the convenience of the seller.
You should, if you haven’t already, immediately provide a copy of the contract to your bank or finance broker to assist you with any finance requirements you have.
You should arrange insurance for the property you are purchasing.
Your conveyancing solicitor will talk with you about searches which should be undertaken on the property. This process allows you to satisfy yourself that good title to the property will be available on settlement. Searches should be conducted straight away. Here you should search various government and body corporate records to ensure that there are no encumbrances or defects on the property that were not mentioned in negotiations or on the contract, and that the property is how it appears.
You will need to advise the seller, through your conveyancing solicitor, that you have satisfactory building and pest inspections and satisfactory finance if these are conditions on your contract.
Once your finance is approved you will need to urgently sign loan documentation with your bank, within plenty of time to allow settlement to occur in accordance with the contract terms. You should note the details of your conveyancing lawyer on any bank documentation so that there are no difficulties when it comes time to book in your settlement.
There will be transfer duty payable on the contract. This is payable by the buyer. Your conveyancing lawyer will advise you about the amount of duty payable and when the duty is payable.
Prior to settlement the buyer’s lawyer will prepare transfer documents in anticipation of settlement. These will be sent to the seller’s lawyer on the promise by the buyer’s lawyer to hold them pending settlement. Your lawyer will stamp the transfer documents in accordance with the assessed transfer duty amount.
There are likely to be other steps to be taken by either a buyer or a seller. Your conveyancing lawyer should point you in the right direction to make sure that your transaction goes as smoothly as possible.
At settlement your bank and your lawyer, or their agents for both the buyer and seller will meet at a mutually agreed location, usually the agent for the bank which is releasing a mortgage (the seller’s bank).
The seller’s bank will hand over a release of mortgage document, in exchange for a bank cheque in favour of the mortgage to be released.
The buyer’s bank will receive the release of mortgage from the seller’s bank. The buyer’s bank will also receive the transfer documents from the buyer’s lawyer.
Other cheques may have been requested which cover any outstanding rates or utilities, agent’s fees or legal costs for conveyancing. These will be collected by the party which requested the cheques be available.
- After Settlement
The buyer’s bank will arrange to lodge documents to transfer the ownership of the property from the seller to the buyer. The bank will lodge, the release of mortgage, the transfer document and then any new mortgage. The bank will receive confirmation of the change in ownership of the property.
Notification to the local city councils for rates is automatic upon the registration of the change in ownership. You will see a change in ownership appear on your next rates notice, or the council might write to you to confirm the change.
If you are purchasing a unit, as buyer your solicitor will need to lodge a form with the body corporate for the unit to confirm that ownership of the property has changed.
All of these steps have certain legal requirements or sub-steps that further dictate the process. Missing any of the required steps or deadlines can cause delays in the conveyancing process and significant problems (including termination of the process).
If you have further questions about the conveyancing process, please contact our office on (07) 3343 9522 or (07) 5446 1745 or through our contact us service here.
Engaging a lawyer to undertake the conveyancing
Conveyancing is a precise area of law, it depends on strict adherence to legal processes, requirements and deadlines. In Queensland we must comply with the Conveyancing Protocol. You are able to organise your own transfer of property but it is highly advisable that you hire a solicitor to act on your behalf, due to the complex and inflexible nature of this area of law, and the large amounts of money involved.
If you hire a solicitor to undertake the conveyancing process for you, they will be able to do most of what is required for the transfer of property, on your behalf. They can also provide you with a check list of anything you need to do for the conveyance and the deadlines involved.
Another benefit of hiring a solicitor for your conveyancing is that they will be able to explain the different processes and requirements to you, including the costs involved in and the other parties that will be involved in the transfer.
There are otherwise four key reasons that are really important as to why you would want to engage conveyancing lawyer to assist you with the transaction.
- That there is a lot of law relating to conveyancing and it can be a bit of a minefield trying to walk through that and working out what is important and making sure that your rights and obligations are protected and making sure that you have someone looking after just your interest.
- To make sure that you have got all of the information you need so when you purchase in particular having all the searches available to you to make sure that the property you have signed up to buy is what you thought it was.
- Transfer duty which was formally called stamp duty – making sure that you pay the right amount on time and do not incur any penalties;
- Making sure that all of the forms have been completed properly so that the property that you are ultimately going to purchase gets transferred into your name, or if you are selling it is transferred out of your name properly.
If you have further questions about engaging a lawyer to assist in the conveyancing process, please contact our office on (07) 3343 9522 or (07) 5446 1745 or through our contact us service here.
When should I speak to a lawyer?
Most often when you buy and sell property the first thing you will do is find a real estate agent to assist you in that process. Unless you have used a lawyer before, thinking about your conveyancing is often one of the last things on your mind.
It is a good idea to think about who might assist you with your conveyancing as early as possible. If you have used a lawyer before you might want to get in touch with them to say that you are going through this process so that they can be aware and ready to assist you. If you haven’t used a lawyer before it is a good idea to have a look around at who would be able to assist you.
Having a lawyer look over a contract before you sign on the dotted line is really important because there are some key rights and obligations right on signing that are crucial. If you do not get to see a lawyer beforehand that is ok, all is not lost, and there are still some limited circumstances where you can get out of a contract if you decide that you have made the wrong decision.
If you have further questions about engaging a lawyer to assist in the conveyancing process or require preliminary advice before you sign your contract, please contact our office on (07) 3343 9522 or (07) 5446 1745 or through our contact us service here.
Conveyancing really is a very competitive market. You hear often on the radio and see in the newspaper and on the internet really quite cheap conveyancing quotes and there are some key things that you just need to be aware of when getting a quote for conveyancing.
There are three key aspects of any quote that you want to be pay attention to:
- There are the professional fees – these are the fees that lawyers charge for all the running around the lawyer is doing on your behalf.
- On top of that they charge GST, a government tax that is unavoidable.
- Third part are the searches and outlays. So many times we are seeing that quotes do not include searches and people are caught by surprise when the fees for the searches come in and they are far more than what they had thought so it is really important to get a detailed quote to make sure that you have got all of the information and you know exactly what you are up for and what you have to pay for your conveyancing fees.
In addition to the legal conveyancing fees are other costs which you need to keep in mind:
- Registration costs associated with registering the mortgage and transfer documents – these will usually be built into any finance provided by your bank;
- Registration costs to release the mortgage are paid by the seller and adjusted at settlement;
- Building and pest inspections;
- Survey costs;
- Valuation fees may be charged by your bank;
- Transfer duty is payable by the buyer on settlement;
- Adjustments are made for local council rates, water and / or body corporate levies at settlement.
To obtain a detailed breakdown of the fees you can expect to incur in your matter, please contact our office on (07) 3343 9522 or (07) 5446 1745 or through our contact us service here.