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Conveyancing Excellence provides a five-step guide to buying a property which is essential reading for home buyers and investors.

This guide will take you step-by-step through the buying process. Although the guide is extensive, it is easy to follow and can help you flag an issue that may need further investigation.

As your conveyancer, we will help protect you from costly mistakes and see that you get the result you hoped for. Conveyancing, finance, settlements: we help take the headaches out of each and every step. Also, by reading the guide you will avoid many pitfalls before you sign a contract, otherwise it is often too late once contracts have been exchanged.

When you are ready simply fill out the on-line buying instruction form and we’ll take care of the rest, including giving you a competitively price quote.


Step 1 – Investigation

Although property is often talked about as if it is a commodity, it isn’t, as every property is unique. That’s why you need to research every property before you contract to buy. Whilst a home buyer will have their own criteria to find the right property, an investor or business will have a completely different set of measurements. What is common to both is that all property is subject to the laws of property. For the average home buyer, in most cases the legal side of things is straight forward, but not always.

The home buyer will generally only want to concern themselves with such issues as:

  • Is it where I want to live?
  • Does it meet my needs?
  • Can I afford it?
  • How much are the transaction costs?
  • What are my mortgage repayments?

An investor buying an investment property looks at:
leasing potential, yield, capital gain potential, to renovate or develop, which are very different criteria from buying your own home. There are also tax implications to consider – stamp duty, GST, income tax, capital gains tax that are not always easy to assess.

Commercial or rural property will have another unique set of criteria again.

The following is given as a guide to help you in the critical first stage of finding the right property. This guide will help you in:

  • completing your own due diligence on checking the title,
  • checking the measurements of the property,
  • checking the zoning of the land,
  • understanding what easements and covenants mean,
  • determining how much the rates or owners corporation fees etc are.

We as conveyancers do expect you to ask for our opinion, on any issue, before you sign an unconditional contract. Otherwise it is very difficult to re-negotiate or withdraw from the contract after the event.

In Victoria, the Vendor has a statutory duty to give a disclosure statement in the form of a Section 32 Statement but it does not cover all matters. More on this later.

Vacant possession VS subject to tenancy

One generally distinguishing feature between the home buyer and the investor is that the home buyer wants vacant possession of the property at settlement and the investor quite often is buying the property subject to a Lease.

As a home buyer, it is important to establish from the agent or the Vendor that vacant possession will be given at settlement, and the Contract will need to clearly stipulate “vacant possession”.

If the property is tenanted, check the terms of the Lease. How long has the lease to run? Are there any options to renew? How, and how often, is the rent to be reviewed? Who pays the outgoings? What’s the tenant’s history? Refurbishment, etc. We strongly recommend that you have us or your solicitor check the Lease.

Title

Check the title and the plans. Who is the owner? Is the property subject to a mortgage? Are there any caveats, easements or covenants shown on title and what do they mean?

Identity of the Land and Measurements

It is important that you check the dimensions of the property against the title boundaries. The reason for this is most contracts carry a special condition that says you are buying the property “as fenced”. If the fences don’t accord with the title boundaries you won’t have any redress against the Vendor. It will be left for you to sort it out with the neighbour concerned. Fences may be out a few inches or a few feet or metres. This could be quite detrimental or advantageous to a developer.

If you are in any serious doubt as to identity, area, abuttals or encroachments, a survey should be made. In any event, it is essential that the connecting point of the title should be checked, as well as the dimensions of the boundaries.

It should be ascertained that the property is not subject to an easement not mentioned in the contract, e.g. a drain over the property, or of overhanging eaves or spouting. The possibility of the existence of encroachments (of adjoining buildings or fences) should be borne in mind, as should whether any buildings or fences on the property being purchased encroach on any adjoining land or street. If any serious doubt arises as to any of the matters discussed above a survey will be desirable.

If there is an issue with which you have any doubt, this needs to be addressed with the Vendor before you sign a contract.

Planning

These days one cannot over-emphasise the importance of the planning codes to property law.

The use to which you can use property is all controlled by the various planning schemes that are regulated by the local councils.

Just be aware that even with residential property that is within a residential zoned precinct, there can be various overlays that affect height, conservation, heritage, development etc. You can start by checking the planning certificate, if it is attached to the section 32 statement, or check direct with the planning department of the local council. Another place to check is www.land.vic.gov.au.

If you are considering the development potential of a residential site it is even more critical to check the zoning and the planning scheme. You need to note the zone in which the property falls. Note all relevant information on the certificate. Peruse all clauses to ensure there is no ‘hidden’ restriction or standard. Check definitions. Generally examine proposition that the proposal is legally permissible in the zone.

If you intend a commercial or any other use of the property, it is of the highest importance to check the zoning and the applicable planning regulations. The planning regulations describe permitted uses that don’t require a permit (as of right), permitted uses that require a permit, and uses that are prohibited.

When you are ready simply fill out the on-line buying instruction form and we’ll take care of the rest.
For further information contact us.

Easements or Covenants or Restrictions

There are legal texts just devoted to this one subject.

Easements

Easements can either be a burden on the property, or the property can benefit from an easement over a neighbour’s property. Easements can be registered on title so they are clear and defined, and these are legal easements. Or they may not be registered on title, in which case they are defined as equitable or implied easements.

With respect to residential property, drainage easements are a common example of a registered easement. Drainage easements often run along the side or rear boundary of the property and are in favour of the local water authority or council. But sometimes a drainage easement may run across the property, which can be somewhat restrictive for the owner to redevelop the property, because you cannot build over the easement without express consent of the water authority.

Another common easement is a right of carriageway.

Registered easements will either be noted on the Title document or by notation on the Subdivision Plan

Caveat Emptor

You need to check and study the Title and the Plan or diagram of the property, both of which ought to be attached to the section 32 statement, to know what easements or covenants or restrictions affect the property.

Less common are equitable or unregistered easements. These may exist from a right granted to a neighbour by the current or previous owner. An example may be a right of way for a neighbour to cross the land. Although this right won’t be shown on the title, it ought to be apparent from an inspection of the property, and it ought to be disclosed by the vendor in the section 32 statement.

A common characteristic of an easement is that it generally gives the right of a person to enter onto the land for the purpose contained in the easement whereas restrictive covenants affect the amenity of the land.

Restrictive Covenants:

The three most common restrictive covenants we see on title are:

  1. that you cannot quarry the land
  2. that you must build a house that conforms to certain standards using certain materials, for example, brick walls and roof must be either tiles or colourbond.
  3. you cannot build more than a single dwelling on the property.

The first example is a historical covenant and was a device used by early developers pre-Planning Schemes to ensure a residential development remained exactly that – residential. Recent cases where Council has refused to issue a permit for a swimming pool because the use is in contravention of such a covenant have been overturned by VCAT. That is, VCAT has granted the property owner the permit to build the swimming pool. VCAT in some cases have the power to issue a permit which is at variance to the restrictive covenant.

The second is common with the modern residential subdivisions to ensure a certain standard within the subdivision is maintained. Some of these covenants can be quite extensive and in some cases you need to have your building design approved by the developer of the estate.

The existence of a single dwelling covenant is the one developers need to take special care of, as the process for removal can be long, arduous, expensive and the removal cannot be guaranteed. Often the only way to remove the covenant is application to the Supreme Court of Victoria. You could be looking at spending $20,000 at least to have such covenants removed or varied.

Building Condition – Potential Defects

The legal process of conveyancing deals with transfer of title to the land, thus concern is not given to what is built on the land. Although with buildings less than 7 years old, there are legal obligations for vendors with disclosure of building permits, insurance warranties and with owner builder’s building survey reports.

Caveat emptor

The vendor is not under any obligation to tell you about hidden or patent defects in the building. You take the building as is. If the building has dry rot, termite infestation, rising damp, blocked pipes etc and you sign an unconditional contract, too bad.

If you are unable to judge these things yourself, then call in the services of a builder, building surveyor or architect before you buy. Or make the contract subject to a building inspection and pest report that does not show any serious defects.
Flooding, Road widening, Heritage, Landslip, Contamination
All the above may be an issue.

The Vendor has obligations of disclosure, but this still does not mean you don’t need to do your own due diligence. Careful inspection of the property and the surrounding area will raise flags for which you should then undertake further inquiry.

Flooding

Certain areas in Melbourne are known problem spots for flooding. For example, parts of Elwood near the Elwood canal, or anywhere that is near the natural creek lines, may be susceptible to flooding.

Melbourne Water, South East Water, Yarra Valley Water and City West Water have maps and will issue a certificate for the property that indicate whether the property is affected by flooding. Some certificates indicate a 1 in 100 probability, which in some cases is of dubious value. The main issue with flood levels is that building costs can be increased to ensure floor levels are above the flood line.

Road proposals

VicRoads issues a certificate that indicates whether a property is affected by a road proposal. Properties on main roads may be subject to a road-widening proposal and you can generally refer to the Melways directory for any proposed freeways.

Contamination

This is not generally an issue. We recommend an environmental audit be done if buying a Petrol & Service Station site, especially if the property is to be re-developed. Its very costly to remove contaminated soil or asbestos riddled buildings.

Flats, Apartments and Owners Corporations

All subdivisions with common property will be subject to an owners corporation.

Caveat emptor

A few things to consider:

  1. any special owners corporation rules
  2. owners corporation fees – these can be quite high in multi storey buildings with building insurance, lift maintenance etc.
  3. sinking fund – this is to cover future capital expenditure
  4. future maintenance costs and major repairs
  5. any litigation affecting the owners corporation or its members

Due diligence: Obtain a Owners Corporation certificate which should include a copy of the last Annual General Meeting (AGM).

Rates and Outgoings

Of course you need to check the outgoings that affect the property generally being council and water rates, owners corporation fees and land tax.

Services

Electricity, gas, telephone, water and sewerage – check whether they are connected. If not connected, check that they are available and check the cost if you have need to make provision for their connection. This is very important with rural properties.

Valuation and Negotiation
Experience is the greatest teacher for this. Detailed research is essential – research comparable sales, attend auctions, use internet sites for auction results by postcode, or engage a qualified valuer or a buyer’s advocate

When negotiating for a property ask questions of the agent such as:

  • why are they asking this price?
  • why are they selling?
  • how long has it been for sale?
  • what will they take?

Keep asking questions of the agent. Never reveal your limit to the agent. Use a friend or buyer’s advocate to bid at the auction on your behalf.

You might end up buying the property for less than what you would really be willing to pay.

Misrepresentation – High Pressure Selling

It’s an unfortunate fact of life that not all estate agents are completely honest (the same has been said about solicitors and conveyancers!). So don’t be caught relying on what the vendor’s agent tells you. You need to check all aspects of the property and the sale, legal or otherwise, independent of what an agent may tell you.

It’s the same when it comes to the property’s value. You need to independently assess value for yourself. The practice by agents of false quoting to vendors and buyers, where the agent gives one price to the vendor and another price range to prospective buyers, would appear to be widespread in the industry.

Don’t get caught out. Get advice. Get expert advice. Use an experienced and licensed conveyancer. I have seen more than one client get into a really tangled situation, getting in over their head and all this could have been avoided with proper conveyancing representation and advice.

Property Use and Development

Developers need to take special attention of town planning issues.

Town Planning Issues

It is important to find out whether the zoning and other planning provisions allow you to use the property, or to build new buildings, as you intend to. If so, you also need to know:

  • whether the use or development is allowed without a planning permit;
  • whether the use or development requires a planning permit;
  • whether a planning permit has been granted;
  • whether there are existing use or non-conforming use rights

And if the use or development is permitted:
what conditions or restrictions there may be.

Other Issues Relating to Properties

Building Permits

  • What building permits exist or will be required?
  • Requirements of the Council, Water, Sewerage, Catchment, Flooding, and Drainage Authorities, Vic Roads, Power, Gas, Telephone and other Utilities
  • Restrictions and requirements relating to flooding, landslip, landfill, contamination.
  • If there is uncertainty as to the boundaries of your land you may need to arrange for a survey.

In most cases you should be able to satisfy yourself, in regard to the above matters, by a careful inspection of the property and the surrounding locality. If it appears that the property may be subject to any of the above problems, you should contact us immediately.

It is essential that the above issues are canvassed and investigated prior to signing a contract; else the contract needs to be subject to your satisfactory planning investigations within, say, 14 days from the date the Contract is signed by the Vendor. Otherwise, you are in effect buying the property “as is” with the risk that any proposed development may or may not proceed.

We do not have any expertise in building matters, including building permits. However we may be able to refer you to building surveyors or architects who can advise you in these areas.

When you are ready simply fill out the on-line buying instruction form and we’ll take care of the rest, including giving you a quote for fees.


Step 2 – Finance

Set your limit on the maximum you can pay for your home.

The variables that determine the maximum you can afford to bid or pay on your home are –

  1. how much you can borrow
  2. your savings or equity or cash on deposit that you have
  3. government fees and transaction costs – refer calculator
  4. a budget for any renovation costs you intend to spend

How much you can borrow is primarily determined by your income and your current debt and credit card commitments. The more you earn the more you can borrow!

 

Contracts being “subject to finance”

If the Contract of Sale is subject to finance approval, then it is your responsibility to ensure that you make every attempt to obtain finance approval by the specified date. If the finance has not been obtained by this date, you may request an extension to allow further time for approval to be given.

The Contract will also specify the period for when the purchaser must either withdraw from the purchase (as specified in the Contract) or request an extension. If a written request for either an extension, or for the Contract to be canceled, is not provided to the vendor or the vendor’s agent within this time, the Contract of Sale can fall unconditional and you, the Purchaser, will be locked into the Contract.

If the due date for finance falls due, and the Purchaser has not been able to obtain finance approval, you can withdraw from the Contract with written notice served upon the vendor. The Vendor may also request proof that the Purchaser has made immediate application for the loan, has done everything reasonably required to obtain such loan approval, and has a letter from the bank or lending institution declining the loan.

Settlement Funds

Should you also be providing some of your own funds at settlement, it is your responsibility to ensure that those are available for the settlement date. Funds must be in the form of bank cheques. Please be aware that personal cheques, trust cheques, money orders and even some credit union and building society cheques are generally not acceptable tender at settlement.


Step 3 – Contract and Vendors Statement

The Contract stage

Having completed steps 1 & 2 you are ready to bid at auction, or you are negotiating to buy and making an offer.

At auction the successful bidder will sign an unconditional contract – no cooling off rights and the contract is not subject to finance approval.

Whereas if it is not an auction a purchaser will generally have the benefit of the 3 day cooling off period or may make an offer subject to finance approval or any other condition.

Cooling off rights – Victoria

With several notable exceptions, a purchaser of a dwelling home has certain rights to avoid contracts.
The cooling-off period is 3 clear working days from the time the purchaser signs any documentation. If you do decide that you wish to avail yourself of this provision you should contact your conveyancer immediately if the cooling-off period has not already expired. This right does not apply to properties purchased at auction (or 3 days prior to or after the auction).
Cooling off applies 3 days from when you, the purchaser, signs – not from when the vendor signs or accepts the offer.

The Contract

This document sets out the terms or the proposed terms of a contract for you to buy the property. Until you sign a contract you can ask for any condition to be incorporated.

The key elements of the contract of sale or contract note are:

The Names of the Parties Buying and Selling

You need to ensure that your full name or names are correct.

“and / or nominee”

If you are buying on behalf of a family member or want to nominate a company, you need to have the above words added after your name.

The Description of the Property

The property can be identified by reference to its address and/or by its title particulars, being the volume & folio identifier, or a lot on a plan of subdivision. If it is an apartment or flat, and a car park is included that is not on title, this needs to be checked and specified. Some car parks have a separate title.

Inclusions of any Chattels

The inclusion of any chattels must be accurate and complete. All fixtures are included in the purchase without having to be mentioned. Sometimes it is not easy to know for sure whether an item is a fixture or not, so if in doubt it is best to name it as an inclusion.

The Price and GST

This is the agreed price you are paying for the property. If the price includes GST, this should be made clear. It is not uncommon to see special conditions added by Vendor’s solicitors that the price does not include GST and GST is an additional imposition. Seek clarification if you see such a clause.

The Deposit

Usually 10% of the price is paid on signing the contract and this will be held in a trust account until its release has been authorised. Deposits can also be paid by bank guarantee or deposit bond by agreement.

Date of Settlement

Unless a specific date has been set, the date of settlement is generally 30, 60 or 90 days from exchange of contracts (or earlier by agreement). At settlement the title is transferred to you in return for the payment of the price in full. It is a good idea to talk to the vendor to work out a date for settlement that suits you both. If vacant possession is to be given at settlement this needs to be stated on the contract and the vendor is obliged to give you vacant possession on the date of settlement.

Corresponding Sale

If the purchase of this property is to be dependent on the sale of your own present home, there first needs to be either an exchange of contracts on the sale of your present home, or a special clause needs to be included in the contract. Otherwise you may be in the position that you need to arrange bridging finance. A lot of vendors wont accept a contract subject to sale of another property.

Subject to Finance

It would be most unwise to enter the contract unless you have the funds or a written loan approval enabling you to complete your purchase on time. With the approval of the vendor, and prior to contract, a clause can be added to the contract to protect you against the risk that your loan may not be approved. The contract is thereby conditional on finance approval and if your finance is refused you may cancel the contract. You must note that at an auction the contract must be a cash contract. It is not possible to request a ‘subject to finance’ clause. Therefore it is imperative to arrange your finance before you bid at an auction.

Special Clauses

You need to carefully study any special clauses added to the contract, and ask us about them if you are unsure of their meaning. Usually there are conditions wherein you, the purchaser, acknowledges the occupational boundaries of the property agree with the boundaries on the certificate of title. Furthermore, the conditions prohibit any claim for compensation by you if an error is revealed in the title boundary. It is essential, therefore, that you check the distance of the boundaries with a tape measure before you sign the contract, or any cooling-off period has expired.

State of Repair

The property is sold to you in its present condition and state of repair; if you buy on this basis it is almost certain you have no right to object if it later turns out that the building is defective in some way. You may be able to negotiate a special condition that the contract is subject to a satisfactory building inspection and pest report by a building surveyor or architect.

Other Conditions

The vendor may have agreed to complete building works, and if so, these need to be carefully specified.

If you are purchasing off-the-plan, there can be significant stamp duty savings and special clauses need to be incorporated that relate to this issue. Off the plan contracts need to be very carefully read and understood.

When you are ready simply fill out the on-line buying instruction form and we’ll take care of the rest.

The Vendor’s Statement

In Victoria, by law, you are to receive a Vendor’s Statement (also known as a Section 32 Statement) signed by the vendor in accordance with Section 32 of the Sale of Land Act, with a copy attached to the contract.

The statement contains prescribed information which, if incorrect or insufficient, may enable you to avoid the contract or sue the vendor for damages. This statement should contain information relating to:

Title

A copy of the title to the property should be attached, which should identify the vendor as the owner and identify the relevant property. Also attached should be a copy of any subdivision, strata, cluster or stratum plan, if the property is a unit or a flat. This will allow you to check the identity of the property to make sure that it is the one described in the contract.

Easements and Covenants

You need to take any easements or covenants into account when purchasing a property. An easement gives someone the right to use part of another person’s particular land for a particular reason. Whereas a covenant restricts an owner’s right to do what he wishes with his land. Restrictive covenants are often concerned with building standards, or prohibit the use of the land for certain purposes. Particulars of any failure to comply with the terms of the easement, covenants or restrictions should also be disclosed.

Rates and Charges

Details of non-apportionable rates or charges, to which you become liable after the sale, should be disclosed as well as any recurrent rates and charges.

Notices and Orders

Particulars of any notices, orders or approved proposals issued by public authorities in relation to the property must be included.

Services

What services (water, sewerage, electricity, gas, telephone) are connected to the land?

Planning and Building

The Vendor’s Statement contains limited Planning & Building information

Planning

It will show the zoning. It is important that the land is zoned in a manner that allows you to use or develop for the use you intend. For example, if you are buying a residential property, it is important that the land is within a residential zone. If you are buying a property for commercial use, it is important that the land has an appropriate commercial zoning. A copy of the planning certificate verifying the zoning should be attached to the vendor’s statement. Planning schemes restrict the use of the land and any other use may be prohibited or require special approval from the council.

Building Permits

If any building or renovation work has been carried out in the last 7 years on the dwelling you are purchasing, the vendor’s statement should give details of any permit which was obtained for the work, as well as warranty insurance.

The Vendor’s Statement does not disclose the following matters:

  • whether the land is flood prone;
  • whether the land is filled land or suffers from any other latent defect;
  • whether any buildings breach any provisions of the Victorian Building Regulations;
  • whether there are any defects or problems with any buildings and fittings on the property (eg. leaky roof, infestation of white ants, heating equipment not functioning etc.);
  • whether there are any proposals that may affect the property and which are not yet approved;
  • whether there is a swimming pool which requires to be fenced to comply with council regulations.
  • whether the fences are on the title boundaries or whether a neighbour has a possible adverse possession claim.
  • as well, there may be particular requirements and limitations relating to how the property may be used or developed (ie; with new buildings). It would be in your interest to speak to the Council and if there is a potential problem raise it with us.

Title Insurance

What is it? and why do we recommend that you buy Title Insurance.
First Title, an Insurance Company, provides a comprehensive title insurance policy that provides protection to purchasers of residential property against known and unknown risks that could cause stress and financial loss in the future.

During a conveyancing transaction we, the conveyancer, will work diligently to identify risks that may affect property. We will often find matters that could affect use of the property in the future, however, there are also risks that even the most thorough processes cannot discover.

Examples of risks insured by First Title’s Home Owners GOLD policy include:

  • structures that do not have building approval certificates;
  • structures that fall foul of zoning requirements;
  • boundary disputes between neighbours;
  • identity fraud is copied and property is fraudulently mortgaged.
  • organised crime gangs are operating in Australia.They target innocent home owners and steal or mortgage their property; and
  • an extensive range of general ownership risks.

For a minimal cost, with policies starting at around $350 we highly recommend you take out Title Insurance. It is a one off cost for the entire time you own the proeprty, not an annual premium.

When you are ready simply fill out the on-line buying instruction form and we’ll take care of the rest, including giving you a fixed price quote.

for further information contact us


Step 4 – Conveyancing

Your conveyancer’s role

Our role is to:

  • check the contract – noting special conditions
  • check the Vendors statement
  • do a title search
  • apply for property and statutory certificates
  • lodge a caveat, on your instructions
  • prepare the transfer of land
  • liaise with your bank on your behalf
  • arrange settlement
  • advise you and generally look after your interests

Check the contract

We check the contract, noting the terms and any special conditions as to finance, building inspection, planning permit, building works or otherwise, or if there is GST or stamp duty savings. We will peruse the contract for any unusual conditions and discuss the terms with you.

Check the Vendors Statement

We peruse the section 32 statement checking the title and plan of subdivision and certificates that are attached and will again advise you of anything that appears out of the ordinary.

Title Search

In all cases we order a title search to confirm the title particulars and check that the vendor is the registered proprietor. We also note all of the encumbrances, particularly any dealings that have not been disclosed in the Vendor’s Statement.

Caveat

As soon as there is a binding document of sale, you may lodge a caveat against the vendor’s title, noting your interest in the land.

A caveat is notice, which the Title’s Office endorses, on the vendor’s title and gives anyone searching the vendor’s title notice of your claim or interest in the land. This helps to protect your interest in the land in the event that the vendor attempts to again sell the land or borrow against it. In this situation you still would have your contractual rights against the vendor in damages, but if you lodge a caveat, this would give you absolute priority over anyone lodging a subsequent document.

We recommend you lodge a caveat to protect your interests. The government fees are approximately $65 per caveat and fees for preparation and lodging are appromiamtely $85.

We will seek your instructions as to whether you wish us to lodge the caveat on your behalf.

Property Certificates

We will apply for various property certificates. The certificates allow us to calculate the adjustments for the settlement statement. If there are any arrears of rates or land tax owing these will be shown on the certificates and adjusted against the vendor. Ditto for owners corporation (formerly called body corporate) fees.

The Planning Certificate is important for zoning. If there have been building works in the last 7 years we can apply for a building certificate which will disclose that permits have been issued and final inspections have been carried out.

As in the preceding section we recommend you have Title Insurance. Ask us if you want further advice on Title Insurance and how to obtain a policy.

Nomination

If you have signed the contract “and/or nominee” we will discuss with you whether you will be nominating. You can nominate any other person or company provided there is no additional consideration, no option and no development involved. Nominating requires a nomination form and statutory declaration prescribed by the State Revenue Office Victoria

Transfer of Land

We will prepare the transfer of land document by which you will be shown on the title. Your full name(s) and address needs to be engrossed on the transfer.

If there is to be more than one owner you need to specify whether ownership is joint or as tenants in common. What is the difference?

Joint Ownership

This is usually the choice of married couples and each owner has an equal share of the property. The rights of survivorship applies thus if one party dies the property becomes the sole property of the other

Tenants in Common

Partners / investors will usually elect to be shown on title as tenants in common as 50/50, 75/25 90/10 or some other combination. The rights of survivorship do not apply. A partner can sell or transfer his share or can be transferred in accordance with the terms of a will.

There are some other alternatives which will involve drawing up a Declaration of Trust. This can often be the case with couples who are married for the second time and one or the other has children from a previous relationship.

Your Bank

You need to advise your bank that we are acting as your conveyancer. We will liaise with your bank and organise settlement with the bank’s settlement section.

When you are ready simply fill out the on-line buying instruction form and we’ll take care of the rest, including giving you a fixed price quote.

for further information contact us


Step 5 – Settlement

Settlement Procedures – things that have to be done

  • general insurance
  • licence agreement?
  • adjustments
  • arrange settlement with your bank and the other side
  • attend to settlement on your behalf
  • final inspection
  • keys
  • notices of acquisition
  • utilities

Insurance

As a buyer, prudence demands that you should insure the house at its full replacement cost from the time you sign the contract note. Apart from the protection this gives you, house insurance is a requirement of all mortgage lenders.
This is generally not applicable to units or flats covered by owners corporation insurance.

Licence agreement

In some cases the purchaser wants early possession of the property before settlement has occurred. This is not always possible. This can only happen if the property is vacant and the vendor agrees.

Agreement is usually reached on payment of a licence fee (rent) and payment of the Vendor’s solicitor’s legal costs (approximately $220) in preparation of the Licence Agreement.

Adjustments

Prior to Settlement, Conveyancing Excellence will prepare an adjustment statement apportioning the rates and outgoings to the property as of the date of settlement.

(note: some contracts provide for the adjustment to be undertaken as at the day of sale).

The adjustment of rates will ensure that the Vendors pay all rates and taxes due on the property up until settlement date, and Purchaser pays from the settlement date.

Councils usually require all rates for the current rate year to be paid at settlement even though they may not be due until a later date. This will be reflected in the adjustments.

Any arrears or outstanding interest on the rates will be deducted from the monies due to the Vendor and paid to the council, owners corporation or authority. There will also be an adjustment against the Vendor for fees pertaining to the discharge of any mortgage or caveat.

In respect to cheques there is often a cheque paid to the Vendor’s solicitor. Don’t be alarmed — you are not paying the other side’s legal costs. This is a cheque direction by the Vendor and is deducted from the monies due to the Vendor.

Settlement Day

Settlement Date is the date the Purchaser takes possession of the Property. The Contract specifies the settlement date or the method to calculate the settlement date. If settlement date falls on a weekend or public holiday, settlement will be the first business day after that day.

A time and location is agreed to by all parties involved in the matter (Purchasers representative, Vendors representative, incoming Mortgagee and Discharging Mortgagee).

It is not usual for a Purchaser or Vendor to attend settlement.

At settlement, funds are provided by way of Bank Cheques. The money is handed over in exchange for the duplicate certificate of title, the transfer of land and release of any mortgage or caveats.

Once good title has been established and all parties are satisfied, settlement is deemed to have been effected. The Agent will be informed to release the keys.

Penalty Interest

If settlement does not take place on the day of settlement, the Purchaser is liable to pay penalty interest on the balance due to the Vendor. The Penalty Interest rate is approximately 16% calculated daily. You as the purchaser need to make sure all efforts are made to have your finance approved in a timely fashion and that you have your funds available on the settlement date by way of bank cheques.

Plus you are at risk that a rescission notice may be served incurring further legal costs and risk that your deposit is forfeited if settlement is more than 14 days after service of the Rescission Notice.

Before Settlement

Final Inspection

The Purchaser has the right to inspect the property purchased within seven days prior to the date of settlement. Contact should be made to the selling agent who will schedule a time and date for your final inspection. The purpose of this inspection is to confirm the property is in the same condition (fair wear and tear excepted) as at the time you signed the Contract of Sale.

Should the results of the final inspection not be to your satisfaction, you should contact us to see if the matters can be put right. Settlement is usually not able to be delayed, nor can monies be deducted or withheld from settlement.

It is unfortunate, but your only remedy is an action for damages in the Magistrates Court and most clients simply wear the cost.

If you do not complete your final inspection prior to settlement and upon taking possession of the property find chattels missing or the like, it may be difficult for any claim to be made against the vendor.

Keys

The keys to the property are usually kept with the Estate Agent and can be collected by you upon confirmation that settlement has occurred.

Removalists

Conveyancing Excellence will endeavor to provide a settlement time to you as soon as possible. However, due to other parties involved, it may not always be possible and for unforeseen reasons settlement can be delayed.

Utilities

Conveyancing Excellence will notify the local council and the relevant water authority of the change of ownership.

It is your responsibility to make arrangements for the connection of the Telephone, Electricity and Gas. You should arrange these prior to settlement.

Swimming Pools

It is your responsibility post settlement to contact the relevant Local Municipal Council to ensure that any swimming pool on the property comply with the current safety laws and regulations.

Smoke Alarms

It is also your responsibility to make sure that the property complies with the requirements pertaining to Smoke Alarms. Contact the Metropolitan Fire and Emergency Services board for further information on 1300 655 511, or visit www.mfb.vic.gov.au.

Trusts

If you are purchasing as a Trustee we recommend you or your accountant lodge a Notice of Trust Acquisition of an Interest in Land with the State Revenue Office after settlement has taken place. Contact the SRO for a copy of the form or download it from the SRO website.

Translation

If English is your second language and you require an interpreter to assist in the Purchase/Sale process, or documents to be translated, please notify our office at your earliest convenience so that arrangements can be made.

When you are ready simply fill out the on-line buying instruction form and we’ll take care of the rest including giving you a fixed quote.

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