What is Conveyancing

Oct 15, 2020 | Conveyancing

What is Conveyancing?

Conveyancing is the legal process of buying and selling property. There are lots of issues other than the legal ones for first home buyers, such as:

  • securing the right loan (you need a mortgage broker)
  • establishing your budget and saving the necessary deposit (a financial advisor may be able to assist with that)
  • finding the right property (your real estate agent will help you do that, but you should have a clear idea of what you are looking for and why)

This article addresses only the legal aspects of buying your first home.

Perhaps the first thing you should do is to see what benefits may be available to you. These are summarised as follows:

If you are a first home buyer, you WILL NOT receive any benefits unless you are buying a new home or vacant land to build a new home. In that case:

a) $15,000.00 grant is available if the value of the new home is < $650,000.00

b) Exemption concession from stamp duty may also be available to you if the new home is < $650,000.00 or if vacant land, the value is < $450,000.00

If you are NOT a First Home Buyer, there is still a grant available to you as long as you buy a NEW Home or Vacant land on which to build a NEW Home:

a) The grant is $5,000.00 with similar thresholds as apply to first home buyers,

b) There is a trick with this one – if someone has already claimed the grant for this particular lot, then it is NOT available to you. A classic example of this is where the builder or the person selling to you has already claimed the grant to build.

The only other beneift available is the Relocation Grant:

a) A grant of $7,000.00 is available if your are selling (or sold in the last 12 months) in a metropolitan area and you are buying in a regional area.

Next, give some thought to how you might want to buy the property because the rules are quite different:

a)     Private Treaty—this is the process of you identifying a property, making an offer, the offer being accepted and contracts duly entered into to make the deal binding. The important thing for you in this scenario is to know the value in the area in which you are buying. The same home can be quite a bit different in price from one area to the next. Once you have made your offer and the vendor has accepted the offer, you may be asked to pay a “holding deposit”. This is nothing more that a show of good faith; it does not bind you to the deal and you will get the money back if you decide not to proceed. It does ensure though, that the agent will tell you of other offers being made. The milestone of a private treaty transaction is an “exchange” of contracts. This refers to the physical act of your signed contract being handed to the vendor and his signed contract being handed to you. Until that happens, you are not bound to buy and the vendor is not bound to sell. Once exchanged though, you will be bound by all terms of the contract so it is important that several things happen before you exchange contracts:

  1. Your loan (if you are borrowing) is approved “unconditionally”,
  2. You have arranged a deposit (normally 10% of the purchase price),
  3. You have satisfied yourself of the condition of the buildings, its improvements and inclusions. To do this you may like to obtain specialist advice from building inspectors, pest inspectors, surveyors or even council certifiers. The doctrine of “Caveat Emptor”, or Let the Buyer Beware, applies to buildings on the property,
  4. You have negotiated any terms that are specifically important to you (such as the settlement date or works that are to be completed).

b)     Auction – this is where you bid for the property and the highest bidder wins. The very significant difference with an auction is that as soon as the hammer falls at auction, the highest bidder must sign the contract, pay his deposit and exchange contracts immediately. This is the whole basis of an auction. Therefore, you must have all those things numbered i, ii, iii and iv above in place before the auction,

You would be taking an enormous risk if you attend an auction and buy without having consulted a licensed conveyancer prior to the auction.

We recommend that if you intend to bid at an auction, then you get a feel for how auctions work by attending others that you will not be bidding at, first.

There are other legal issues that come into play that you should be aware of:

a)     Gazumping – occurs when another buyer comes in with an offer above yours after your offer has been accepted but prior to you exchanging contracts. In NSW, you can’t prevent gazumping but you can manage the risk by progressing your due diligence as best you can and by keeping all parties informed of your progress.

b)     Cooling-off period – this lasts for 5 working days only from the date of exchange of contracts and gives you an option to change your mind in that time. It is there because it provides a way of locking the vendor into the sale whilst you go about your due diligence. It is common though that the Vendor will ask for the cooling off period to be waived and in that case, it is vital your due diligence is done before exchange. A cooling off period only applies to Private Treaty sales, it does not apply to auctions.

Whether you are buying under Private Treaty or Auction conditions, the process after exchange of contracts is the same. Most of the issues are dealt with by your Licensed Conveyancer but those issues that you need to attend to are:

a)     signing of your mortgage documents – if there is going to be a delay it is often because the documents required by your lender are not in order when it comes to settlement,

b)     signing of your Grant Application if applicable (arranged by your lender) and your Exemption from Stamp Duty Application if applicable (arranged by your Licensed Conveyancer). There is also a need to produce identification documents that satisfy the criteria outlined in the forms,

c)      arrange your insurance. Normally, the risk as far as property damage goes stays with the Vendor until the day of settlement, but you lender will want to see that the insurance is in place and it is good practice to arrange it well before settlement,

d)     final inspection of the property – when you purchased the property, you agreed to buy it in the condition it was in at the time. You need to make sure it is being delivered to you in the same condition and you should do that as close to the time of settlement as possible. This is the most common area of disputes in the Conveyancing process and you will have no recourse after settlement has taken place.

e)     make available the balance of funds (unless of course, all funds are coming from your lender). All About Conveyancing will provide you a complete balance sheet before settlement showing you exactly how figures have been calculated.

When the time comes for settlement, you don’t have to do anything other than wait for a call from your Licensed Conveyancer to say that the property is yours. You can then collect keys. Be aware, though that the date and time for settlement is not set in concrete. Sometimes things happen that cause delays and it might be as simple as a name being misspelled on a cheque. Sometimes they can be worked around and sometimes they can’t. It is prudent for you to have a contingency plan that allows for a delay. Once you have collected keys, it may be a good idea to have the locks changed in your new property; although keys have been given to you, you have no idea whether other keys exist and if so, who has them.

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