Conveyancing: Buying or Selling
a Property and Leasing
Conveyancing: Buying or Selling
Conveyancing work is an essential part of the process when buying or selling a property, or creating, transferring or otherwise dealing with an interest in a property, including leasing and licensing. The main goal of conveyancing is to ensure a smooth and legally valid transfer of property rights.
During the conveyancing process, various tasks are undertaken. These include conducting property searches to gather information about the property, verifying the legal ownership of the property, examining any existing mortgages, caveats, liens, or other dealings, preparing and reviewing legal documents, and coordinating with all parties involved, such as the buyer, seller, real estate agents, lenders, tenants, lessors and their legal representatives.
Additionally, conveyancers also handle the financial aspects of the transaction, such as calculating and collecting stamp duty, arranging for the payment or adjustment of fees and property taxes, and managing the transfer of funds between parties via Pexa and use of solicitors’ and lenders’ accounts.
Conveyancing can be a complex process, but with the help of experienced professionals, it becomes much easier and less stressful for all parties involved.
Selling a Property
Selling a property involves several steps. Here is a general outline of the process:
Preparation: Before listing your property, it’s essential to make any necessary repairs, declutter, and improve its overall appearance to attract potential buyers. You may also consider getting a property valuation to determine its market value.
Choosing a real estate agent: Select a reputable and experienced real estate agent who can help you navigate the selling process. They will assist in setting the right price, marketing your property, and negotiating with potential buyers.
Property listing: Your agent will create an appealing listing that highlights the key features and benefits of your property. They will also arrange professional photographs and virtual tours, if necessary, to showcase the property.
Showings and open houses: Potential buyers will request viewings or attend open houses organized by your real estate agent. It’s essential to keep your property well-maintained and presentable during this stage.
Receiving offers: Once interested buyers submit offers, your agent will present them to you. They will provide guidance on evaluating offers based on price, contingencies (such as financing or inspection), and other terms.
Negotiation and acceptance: You can negotiate with the buyers to reach mutually agreeable terms, such as the final sale price, closing date, and any contingencies. Once you accept an offer, it becomes a legally binding contract.
Conveyancing: This is when the legal and administrative tasks of transferring ownership take place. You will engage a conveyancer or solicitor to handle this process. They will handle property searches, prepare legal documents, and coordinate with the buyer’s conveyancer.
Contract exchange: Both parties (you and the buyer) sign the contract, and the deposit is usually paid by the buyer. At this point, the sale becomes legally binding.
Settlement: On the agreed-upon settlement date, the remaining funds are transferred to your account, and the buyer takes possession of the property. Your property lawyer will oversee the transfer of ownership and ensure all legal requirements are met.
Buying a Property
Buying a property can be an involved process but here is a simple outline of the process:
Set a budget: Determine your budget by evaluating your financial situation, including your savings, income, and potential mortgage options. Consider consulting with a financial advisor or mortgage broker to determine the maximum amount you can afford.
Get pre-approved for a mortgage: Approach a lender or mortgage broker to get pre-approved for a mortgage. This will help you understand the loan amount you qualify for and give you a competitive advantage when making an offer.
Property search: Find a suitable property or work with an agent (often referred to as buyers agent) to identify properties that meet your requirements and preferences. Attend viewings and evaluate each property based on factors like location, price, size, condition, and amenities.
Make an offer: Once you find a property you are interested in, you can make an offer to buy the property. Consider factors such as the listing price, market conditions, and any contingencies (such as financing or inspection) that can impact on the offer.
Negotiation: The seller may accept your offer, reject it, or counter with a different price or terms. You will sometimes be able to with the vendor to reach a mutually acceptable agreement.
Conduct inspections: After the offer is accepted, schedule a professional property inspection to identify any structural or maintenance issues. You may also opt for additional inspections such as pest inspections or environmental assessments. You also want to inspect strata records for the property if you are buying a townhouse or an apartment.
Finalise financing: Work with your lender to finalise your mortgage application. Provide all necessary documentation and complete any additional requirements, such as a property valuation or mortgage insurance.
Review and sign contracts: Your conveyancer or solicitor will review the contract of sale that usually includes all required legal documents related to the property. They will address any concerns and seek to include all necessary clauses.
Settlement: Coordinate with your conveyancer, lender, and the seller’s representative to set a settlement date. On this day, the remaining funds are transferred, and legal ownership of the property is transferred to you.
Post-settlement tasks: After settlement, you will need to organise tasks such as arranging insurance coverage for the property, connecting utilities, and updating your address with relevant authorities. Move in and enjoy or rent out as appropriate!
Leasing
In a commercial lease arrangement, lawyers play a crucial role in ensuring that the interests of their client (landlord or tenant) are protected by:
Drafting and reviewing the lease agreement to ensure that it accurately reflects the terms and conditions agreed upon by both parties. They will pay particular attention to key provisions such as rent, lease duration, renewal options, maintenance responsibilities, and any special clauses or conditions.
Negotiating terms of lease to secure more favourable conditions for their clients. This may involve negotiating rent amounts, lease incentives, security deposits, or specific clauses that protect the rights and interests of their clients.
Undertaking Due Diligence on the property being leased including reviewing title deeds, zoning and any other relevant documents that may affect the lease agreement as may be instructed by the client.
Assisting with lease modifications or amendments during the term of the lease, to cater to the circumstances that can otherwise give rise to non-compliance or to further develop relationship between the parties.
Lease termination or dispute resolution should issues arise during the lease term, which often means that legal advice on the most appropriate course of action is required.
Beyond the lease agreement itself, we can provide you advice and guidance on related legal matters including business entity formation, intellectual property protection, insurance requirements, tax implications, or any other legal aspects that may arise during the lease arrangement.
Caveats Registration and Removal
How to register a caveat
A caveat operates as a warning registered on title of the land to others noting a person’s interest in the land or property. In legal terms, it is a type of injunction that prevents the registration of dealings and plans on the title.
Not everyone is entitled to lodge a caveat over the title of the property. There are strict rules relating to the registration of a caveat. The key one is that you must have a “caveatable interest”. A “caveatable interest” arises where you have a legal or equitable interest in the land.
You should also be able to support a caveatable interest with documents and facts, such as dates of agreements and records of conversations. Once a caveat is recorded, it must either be removed by the caveator or by court order, or the caveator’s written consent obtained, before any new dealings can be registered relating to the property.
Removal of caveats
A caveat can be removed from the title of the property by the caveator, lapsed following issue of a lapsing notice or by court order.
To issue a lapsing notice the lapsing notice form (Form 08L) must be completed accurately and completely, including the relevant details such as the property description, the caveat details, the caveator’s name and address, and the reason for issuing the lapsing notice.
The notice must be served at least 30 days before the proposed date of removal of the caveat, generally, by registered post or hand-delivery. After serving the lapsing notice on the caveator, you must lodge a copy of the notice with the Land Registry Services.
The caveator has 21 days from the date of service of the lapsing notice to file Summons with an Affidavit in support justifying the caveatable interest claimed to allow for the caveat to remain on title of the property. If the caveator does not so respond within the 21 days period, the caveat will lapse automatically.
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