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Articles

Conveyancing – Buying and Selling a Property

Published June 2003

Buying or selling a property can be an emotional, complex and even risky venture. Laying claim to your slice of the ‘Australian Dream’ is not always easy nor problem free. Your best defence to stopping the dream becoming a nightmare is to arm yourself with knowledge and good legal advice. To be sure that your purchase or sale runs smoothly you need to be aware of the process, your rights and those of others involved. This article is a short selection of commonly asked questions regarding the complex process of buying and selling a property. All property sales will be different and this set of basic answers to common questions is intended only as a guide and is not a substitute for quality legal advice.

What is Conveyancing?

Conveyancing is the process of formally transferring the ownership of real property from a seller to a buyer. This process, like the sale of any property, requires the creation of a sale agreement. In this case, a contract for the sale of land.

What is contained in a contract for the sale of land?

A contract for the sale of land is an agreement between a buyer and a seller that details:

the identity of both the buyer and seller;
the details of the property being transferred (as well as any other items that will come with the property) and its condition;
the price as agreed;
the settlement date (the day on which the transaction will be completed). This will be at least 60 days; and
other rights and particulars such as a ‘cooling off’ period or sale contingent on the buyer gaining finance or selling their own property.

What is the process of drawing up and exchanging contracts?

The process of drawing up and exchanging contracts will proceed in a manner similar to this:

Seller lists their property with an estate agent, and their lawyer creates a draft contract. After having completed property searches the seller’s lawyer will list the details of the property, and the identity of the seller;
Estate agent finds a buyer for the property, the buyer and seller will then begin to negotiate over terms of the contract (not all clauses will be negotiable). The draft contract prepared by the seller’s lawyer will then be amended with the buyer’s details, any other particulars, as well as the sale amount agreed to;
Buyer’s lawyer will scrutinise the contract and carry out various searches to confirm that the property described in the contract is the one actually being sold. These inquiries will also substantiate that the property is owned by the seller, that it is in good repair and not on land likely to flood or subside;
There may also be further negotiation about “cooling off” rights. The buyer’s lawyer may also attend to matters such as ensuring the availability of finance for the purchase; and
Deposit is paid by the buyer and then contracts are exchanged. After the exchange of contracts the seller’s lawyer will execute the transfer of the property title and will be held by them until settlement.

What is a “Cooling Off” Period?

Contracts for the sale of land may include a “cooling off” clause. This clause gives the buyer a period (often five days) in which to decide not to proceed with the contract. If you are the seller, and have already purchased another property based on the sale, the rescinding of the contract will be greatly problematic. If the buyer rescinds the contract during this period then other potential buyers for your property may have already moved on. Many sellers will therefore insist that the buyer waive their right to a “cooling off” period. Though, a “cooling off” period can be shortened or lengthened depending on negotiation between the parties.

Can the seller rescind on the contract?

Yes, there must be a clause in the contract that allows the seller to rescind on the contract. However, this rescission must be made on the basis of ‘reasonable grounds’ and not be an arbitrary or capricious act.

How will the purchase of a strata property differ?

A strata property purchase will be mainly the same (as most strata schemes are under the Torrens system), however, it should be remembered that when gaining strata property you will automatically become involved with an Owner’s Corporation. This will mean different property management arrangements as well as dispute resolution. It will also mean the payment of strata levies by the owner.

How will the sale and purchase of a business property differ?

When selling or buying a non-residential property the difference will be that the contract for the sale of land will not be drawn up until a buyer is found. Also, there will be differences in terms of the kind of investigations you will wish to have carried out on the property itself. These extra searches will involve whether the property to be purchased will suit the business and that purchasing the property will be more financially viable than leasing it.

Do I really need a Lawyer?

The buying or selling of a property is complex as well as risky. The good news is that having a lawyer act on your behalf in this process is virtually a guarantee that your sale or purchase will go ahead smoothly and with a minimum of fuss. While you may think that you cannot afford to retain a solicitor, consider whether you can afford not to. The purchasing of a property will be one of the largest investments you make in your life. During this period both your lawyer and your estate agent will become important people in your life. Whether investing for the future, or buying into the ‘Australian dream’, consulting a lawyer will enable you to feel assured that your investment is in good hands. If you’re buying or selling a property, contact Penmans or your legal adviser.

For specific advice on buying & selling a property contact Penmans Solicitors.

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You should consult a lawyer for individual advice regarding your own situation.