Buying residential real estate, whether it be for the first time or as an investor, can be a stressful process. It is also one of the biggest financial decisions you will make in your lifetime. That is why it is important that you obtain suitably qualified legal advice before entering into any transaction.
An outline of the general process of buying residential property in the ACT is set out below. The process of buying property at auction, vacant land, off-the-plan or property in NSW may differ slightly.
When the seller has a real estate agent, usually the agent will provide us with Sales Instructions, which includes details about the negotiated sale, including the purchase price, title details, inclusions, settlement time frame, and any special conditions, all based on information provided by the buyer and seller.
Once we have received the Sales Instructions we will normally wait to receive the Contract for Sale, and then will provide you with our written advice about the Contract. At that time we will also request information from you about the following matters:
- When do you want to complete the purchase? This is called settlement.
- Do you want ownership registered in your name only or with another person(s), and if there are to be two or more owners then do you want to buy as joint tenants or tenants in common? If the latter then in what shares – equal or not?
- Have you made any arrangements for finance or do you need any advice or assistance?
- If you are a first home buyer, whether you may be eligible for the First Home Owners Grant and/or stamp duty concessions.
In addition, we will also discuss with you matters such as the deposit, goods included in the sale, insurance, and whether you are to obtain vacant possession on settlement or whether the sale is subject to a tenancy.
Building, Pest and Compliance Reports
Prior to the property being offered for sale a seller must engage a Building Consultant to carry out Building, Pest, Compliance and Energy Rating inspections. The reports documenting their findings are included in a marketing contract that you should see before you make your offer to buy the property. The purpose of these reports is to help you make an informed decision about your purchase.
These reports then form part of the Contract for Sale, and you may have rights of recourse if any information in these reports turns out to be false or incorrect. The Building Consultant’s Tax Invoice also forms part of the Contract for Sale and, if you proceed to buy the property, it will be your responsibility as the Buyer to reimburse the Seller for the cost of the reports at the time of settlement.
Loose asbestos fluff insulation was used in many homes in Canberra between 1968 and 1985.
The seller is not required to obtain a report about the existence of asbestos in the property. The seller will not generally give a warranty that the dwelling is free of any form of asbestos, nor does the Building Inspector who prepares the Building Report give any such warranty.
If you have particular concerns about the existence of asbestos in the building you should obtain advice from a qualified inspector.
The Contract for Sale
This is an important document as it sets out all of the terms of the deal between the parties. Much of this document is standard but other elements are specific to the subject property. Importantly, it is prepared by the Seller’s conveyancer using information contained in the Sales Instructions and therefore may contain clauses to the advantage of the seller not the buyer.
There are some matters that need to be checked before the contact is exchanged between the parties. An exchange of contracts simply ratifies what has been an oral (and until exchange an unenforceable) agreement. The act of an exchange means that two identical contacts signed by seller and buyer are swapped or exchanged between the conveyancers so that each party has the contract signed by the other party. Once this happens the terms of the arrangement are set by the written contract terms, so getting the terms of the contract right is of fundamental importance.
Following your appointment, we communicate with the seller’s conveyancer in relation to any changes that you require to the Contract after you receive our advice.
Exchange of Contracts
Exchange of Contracts takes place when:
- Both parties have agreed to the wording of the terms of the Contract;
- Both parties have signed their respective copy of the Contract; and
- Your finance, if necessary, has been unconditionally approved in writing. Unconditional approval of finance will normally be provided after a valuation of the property has been obtained by your financial institution.
On exchange, the Buyer’s conveyancer provides a Section 17 Certificate to the Seller’s conveyancer, waiving the Buyer’s right to any ‘cooling off’ period.
The Buyer provides a cheque for the agreed deposit (usually payable to the Real Estate Agent’s Trust Account) and that cheque is handed to the Seller’s conveyancer on exchange. This is usually 10% of the purchase price, unless otherwise negotiated.
The deposit is held in the Agent’s Trust Account until settlement has occurred. If there is no Agent, the deposit will be held in the Seller’s lawyer’s Trust Account. This money cannot be released to either the Seller or the Buyer without agreement from both parties.
It is important to note that in the ACT the insurance risk passes to the Buyer once contracts are exchanged. Therefore it is essential that you have insurance in place before you exchange contacts in order to protect your interests.
Stamp duty in the ACT is calculated based on the purchase price of the property. We will advise you of the amount of stamp duty payable when we receive the Contract for Sale. We will also advise when the stamp duty is to be paid. A late payment of stamp duty triggers the imposition of significant penalties by ACT Revenue Office and so it is critically important that stamp duty is paid on time.
You should book a pre-settlement inspection of the property with the agent either the day before settlement or on the morning of settlement. When the Seller vacates the property, it should be left clean, tidy and in the same state as at the time of the exchange.
During the inspection, you should check that the inclusions documented in the Contract (floor coverings, window treatments, light fittings etc.) remain and that appliances are in working order, or in the same condition as they were prior to exchange.
If the pre-settlement inspection is unsatisfactory, you should notify us immediately so we can try to resolve any problems with the Seller’s conveyancer prior to settlement. You may have the right to delay settlement if a resolution cannot be achieved in time.
We always recommend you have a pre-settlement inspection as your right to object to the condition of the property, the removal by the Seller of any inclusions, or the working order of appliances may end once settlement has occurred.
It usually takes around four weeks for your lender to be ready to settle your matter after contracts have been exchanged, and during this time we will be ordering rates enquiries and attending to your lenders requirements.
As the settlement date draws near, we make settlement arrangements with the Seller’s conveyancer to obtain settlement figures and details of the cheques they require on settlement.
We will prepare and provide you with a detailed Settlement Statement setting out adjustments for rates, deposit paid, allowances for pest & building reports, legal fees etc.
In Canberra settlements usually take place between 2.30pm to 4.30pm Monday to Thursday, and 1.00pm to 4.30pm on Friday.
Preparing the Mortgage (if applicable)
We will write to your finance provider immediately after exchange and notify them of the date for settlement and provide the details they need to prepare mortgage documents. You should expect to hear from your finance provider shortly after exchange as they will need to arrange for you to sign the mortgage paperwork in time for settlement.
In the weeks leading up to settlement, we will also contact your finance provider to ‘book in’ your settlement. A day or two prior to settlement, the finance provider will provide us with the exact amount of money available for settlement. Once we receive that figure, we will finalise details of the settlement cheques and let you know if you will be required to provide us with additional cheques for settlement.
Please note that any additional cheques provided by you for settlement must be bank cheques.
We will phone you and advise when your settlement has taken place. At that time you can collect the keys from wherever they are being held (usually with the agent).
We will then write to you to confirm that the purchase is complete and we will provide you with a detailed Settlement Statement, our Tax Invoice and any other relevant documentation.
Electricity, Gas and Telephone Connections
The cancellation of these services is the Seller’s responsibility, re-connection will be your responsibility.
Rates and Water
ACT Revenue Office (rates) and Icon Water (water & sewerage) will be notified of the change in ownership of the property by Access Canberra following registration of the Transfer into your name.
Once this occurs, rates notices will be issued directly to you as the new owner.
If the Property is Tenanted
If you have purchased the property subject to an existing tenancy letters will be sent to the tenant and the Managing Agent after settlement advising of the change in ownership of the property and providing your contact details.
You should liaise directly with the Managing Agent in relation to ongoing property management, or otherwise.
We do a considerable amount of property work and have experienced staff to assist you through this process.
Tetlow Legal can guide and support you through each step of the purchase process with our knowledgeable and thorough advice, ensuring that you are fully informed throughout the whole transaction.