Buying a property is usually the most significant transaction anyone will enter into in their lifetime; both from an emotional and financial point of view, there can be devastating consequences if it is not done properly. Regardless if you have purchased a property before, as it is a process that is not done on a regular basis, the legal steps are forgotten. To help we set out below the important steps and highlight some costly traps to avoid.
Transferring Legal Title
The process involving the transfer of legal title of real property from one person to another is called conveyancing.
The conveyancing process is designed to ensure that the buyer obtains a good and marketable title to the property together with all the rights that run with the property and is notified of any restrictions or rights in advance of purchase.
Tetlow Legal can help you navigate the process and will ensure that you get good title to the property you are buying and that there are no restrictions on the property that you are not aware of before you buy.
Why do searches & enquiries?
When buying a property there is a limited statutory obligation on the seller to disclose to the buyer certain things about the property before the contract is signed.
However, there is no obligation on the seller to tell you everything about the property or any of its defects and many enquiries about the property are not done until after the contract is signed or becomes unconditional.
The Seller should engage a Building Consultant to carry out Building, Pest and Energy Rating inspections and by law, this should be done before the property is marketed and reports documenting their findings are included in a contract that you should see before you make your offer to buy the house.
The information in these reports is designed 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 (excluding the Energy Efficiency Rating Report unless this is part of the building report) at the time of settlement.
Searches will help you to find out if the property is affected by any current or known future plans or licenses issued by government or by inclusion on any registers such as heritage listing or environmental management.
It is important that all appropriate conveyancing searches are carried out. Tetlow Legal will ensure that this happens.
In the ACT the insurance risk passes to the buyer once the contracts are exchanged. Therefore it is fundamentally important that you have sufficient insurance coverage at that time. Remembering that the exchange of contracts usually takes place weeks before settlement happens.
Mortgages or encumbrances registered on title
Searches are necessary to confirm that the seller actually owns the property and has the right to sell it to you.
Searches will also provide information about any encumbrances on the title. Examples could include:
- Mortgages; registered against the property. Mortgages must be removed from the title before settlement.
- Easements; the Territory or utility company may have the right to use a portion of your property (possibly above or below ground) for things such as sewerage, electricity, telephones or gas.
- Restrictive covenants; which affect how the property can be used. For example, a neighbourhood may have building size and design requirements.
Special Conditions – avoiding the traps
Tetlow Legal can include special conditions in the contract, before it is signed, to deal with specific issues not covered by the standard form contract.
A special condition can provide a buyer with additional protection or rights.
Where the contract has already been signed there is generally no opportunity to add special conditions. In some limited circumstances it may be possible to negotiate amendments to the terms of the contract if there is a cooling off period or while the contract is still conditional.
Examples of useful special conditions
A common example is the inclusion of a special condition in the contract which gives the buyer a right to occupy and/or access the property prior to completion. A condition such as this can be paramount when you are both selling and purchasing property simultaneously or when you are dealing with complex removalist arrangements.
Giving instructions to Tetlow Legal
If you would like to chat about your conveyancing matter as a guide, here are examples of questions we would need to cover at the commencement of the matter:
- Where is the property located, that is its address and property title details?
- 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 (and 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 to apply for the First Home Owners Grant and/or stamp duty concession.
In addition, we will also discuss with you matters such as the deposit, the goods included in the sale, whether you are to obtain vacant possession or whether the sale is subject to a tenancy, and insurance.
Given that your home is likely to be your biggest transaction it is critical to get it right. While cost is important you should also consider what protection you receive if you get it done by an experienced lawyer who is familiar with the conveyancing process; the special conditions that may be lurking in the contract for the unaware or inexperienced; the potential traps and for general peace of mind.
If you need help and would like an informal chat about your conveyancing matter or would like more information please call Brian Tetlow or Emma Bragg on (02) 6140 3263 or email [email protected]