What is conveyancing?
Conveyancing is the legal process of transferring land ownership from the seller to the buyer.
Why do I need a solicitor?
For many of us, our home is our greatest asset so when the time comes to sell, having the right professional guidance is key. Unlike a conveyancer, a solicitor has the necessary expertise to deal with all aspects of the selling process. They can advise you on settlement procedures and most importantly, are capable of drafting your contract of sale. This is the fundamental area for any vendor that can result in nasty surprises along the way, if not carefully reviewed. With extensive and up-to-date knowledge of the law, a solicitor will be able to handle any legal issues that may arise such as disputes or pre-contractual negotiations.
A solicitor will also be able to provide a broader range of services and advice on matters such as powers of attorney and wills.
What is the role of a solicitor?
Generally, a solicitor will attend to the following:
- Carry out the necessary searches to prepare the section 32 statement;
- Preparation of section 32 statement;
- Drafting the contract of sale including any special conditions that might be necessary to protect your interests;
- Preparing any discharge of mortgage documents and sending this to your bank;
- Preparing the necessary State Revenue Office and Land Victoria forms;
- Calculating an adjustment of the rates on the property between you and the vendors;
- Liaising with your real estate agent and the purchaser’s solicitor to ensure the sale proceeds on schedule; and
- Reporting to you
What do I need to do?
- If applicable, obtain your mortgage payout and advise your lender that you are selling
- Allow the buyer access to your property so that inspections can be carried out
- Send the contract of sale and vendor statement (also referred to as a section 32) to your solicitor
What are the costs involved?
Our professional fees are fixed at $599 plus GST. The disbursements that we incur on your behalf are passed on to you at the cost we are charged. If you are purchasing a unit with an owners corporation, we estimate the total to be approximately $400. If you are purchasing a house, the disbursements will be approximately $200. We will be able to provide you with a better estimate once we review the contract of sale. There will be no extra charge for emails or phone calls.
At what stage will I need to pay fees and disbursements?
All fees are payable at settlement.
Do I need insurance?
We recommend that you obtain the relevant insurance as the vendor is generally liable for any damage to the property up to the date of settlement.
What are title requisitions?
A requisition is a demand from the purchaser to remove any encumbrances from a title prior to settlement such as covenants, mortgages or easements. Title requisitions can only be delivered to if the contract does not specifically address the defect.
What if I am unable to produce the certificate of title on the day of settlement?
You can apply for a substitute title. However, there is no obligation on the buyer to settle before the substitute has been granted.
What if I have lodged the title document with Land Victoria before settlement?
The buyer will need to search any prior unregistered dealings to ensure that the title is clear. It is not necessary to register the title by the day of settlement. It is only a requirement that the title is capable of being registered.
The purchaser has refused to settle until the document is registered.
A purchaser can only refuse to settle due to prior dealings if the title:
- Contains a defect
- Has been ‘stopped’ at Land Victoria
- Requires discretion of the registrar such as an application for a substitute title.
Can I access the deposit before settlement?
It is not uncommon for the seller to request early access to the deposit. This might be to payout the current mortgage or for the purchase of another property. You will need to discuss this as early on in the process as possible and will often require some negotiation. Generally, the following five conditions should be met:
There is no specific condition for the benefit of the purchaser
This might be a building inspection or ‘subject to finance’ condition. As most standard contracts contain terms such as these that are drafted to protect the purchaser, the parties will often compromise to reach an agreement.
The purchaser has accepted the title or deemed to have done so
If the purchaser does not object to the validity of the title within a reasonable period of time, then they are considered to have accepted the title.
You have given the purchaser notice in writing
If the property is subject to a mortgage or caveat, then the seller will need to obtain all relevant information from the lender and complete a ‘deposit release statement’. You can include this in the contract documents. It is important, however, that the purchaser acknowledges the statement as they will have a limited period of time to respond or object the request.
The purchaser is satisfied
This simply means that the purchaser has reviewed the information provided in the statement and is satisfied that the seller is capable of discharging all money owing on the property.
The purchaser advises the seller in writing within 28 days
A signed notice is required by the purchaser within 28 days which will alert the seller of their response. If they do not provide a response within this period of time, the purchaser is deemed to have accepted and the deposit will be released.
The purchaser is refusing my request for early access to the deposit.
A purchaser is under no obligation to release the deposit early. However, they must take action if they refuse, it is not enough to simply ignore your request. They must provide a signed notice stating that they are not satisfied with the particulars of the deposit release statement along with a list of reasons for the objection.
The purchaser has withdrawn from the contract.
The only time that a purchaser can serve a recession notice is if you breach an essential term of the contract. This must be significant enough to alter the entire transaction such as an inability to transfer the title upon settlement. Importantly, for the purchaser to legally withdraw from the contract they must show that they were capable of settling on the date of settlement.
Who is responsible for title searches?
As your solicitor, we will conduct title searches to confirm ownership. This will also ensure that there is nothing on the title preventing the buyer from taking full possession of the property.
What if my name does not match the registered title?
Proof of entitlement is essential if your name is different to that of the current registered interest.
Buying or selling a property? We can help. We’ve acted on hundreds of property conveyances across Melbourne and pride ourselves on efficient, hassle-free, professional outcomes with clear, easy communication.
Call us today on 9534 3002