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Residential & Commercial Conveyancing

What is Conveyancing?

Conveyancing is the process of legally buying or selling land and transferring the title of that land between the buyer and seller.

Most sellers will appoint a real estate agent to sell their property on their behalf. A real estate agent can undertake many tasks on your behalf, such as attract prospective buyers and organise property inspections.

Standard contract for the conveyancing of residential property

Once you have found a property you’re interested in buying, you need to contact the real estate agent who will prepare a standard contract for you to sign.

It is always wise to seek legal advice before signing a standard contract. You should send a draft contract and any disclosure material provided to your lawyer to ensure that all information contained within the standard contract is correct and meets your particular needs. Note that in Queensland, the seller does not have any disclosure obligations and the contracts are “buyer beware”.

If the standard contract needs amending to your particular circumstances, your lawyer can add special conditions to the contract. Some examples of additional clauses may include:

  • the purchase will be dependent on the sale of your existing property;
  • the property is not subject to flooding; or
  • the seller has obtained and complied with all necessary statutory approvals.

Obtaining an independent valuation of the property before signing the contract is also vital.

Cooling-off period

Queensland provides buyers a cooling-off period of five business days starting from the date the buyer or their lawyer receives a copy of the signed contract by both parties.

If the buyer decides not to proceed with the purchase within the five-day period, they must give notice to the vendor. The way the notice must be given should be specified in the contract. The buyer will be required to forfeit .25% of the purchase price of the property, if the deposit paid was more than .25%, the balance must be refunded to the buyer.

Getting a mortgage

Most people buying property will need to borrow funds from a financial institution to help with their purchase. The loan agreement will generally require you to give a mortgage over the property (or other assets) held in your name. A mortgage is essentially a ‘statutory charge’ over the property. It secures the repayment of the money loaned and is registered on the title to the property. The loan contract gives the lender certain rights, including to sell the property, if the loan contract is breached.

If you are financing your property purchase, it is important to understand your rights under the loan agreement and we recommend you obtain legal advice for this purpose.

Property ownership interests

If you are purchasing property, it is important to understand how property interests may be held. A joint tenancy is subject to survivorship provisions – when one owner dies, the other automatically inherits the deceased person’s share which cannot be left to anybody else, even by contrary terms in a Will.

While joint tenancies are generally appropriate for domestic partners, this may not always be the case. Joint tenancies may also apply to more than two property owners, in which case the property passes jointly to any remaining owners after the death of one of the joint tenants.

Property held as tenants in common can specify the individual shares held by each owner (for example 50/50 or 30/70). In such cases a co-owner can transfer, sell or leave his or her share to a beneficiary by Will.

It is important to obtain legal advice regarding property co-ownership to prevent unintended outcomes in estate planning and protect interests should future disputes arise triggered by matters such as financial stress or breakdowns in personal or business relationships.

Selling property by auction

An auction is the public selling of a property where interested buyers ‘bid’ for the property, with the highest price, subject to a reserve, being accepted.

Before the auction starts, the property being sold is usually open for inspection by prospective buyers and the contract for sale should be made available for viewing. The auctioneer should explain the auction rules and give details of the contract
conditions such as the deposit required, whether GST is payable and inspection details before bidding commences.

Once a bid has been accepted, the contract of sale becomes instantly binding on the buyer and vendor and generally there is no ‘out’ for the buyer if finance is not approved or pest and building reports are unsatisfactory.

After the auction, contracts are provided to the respective parties’ legal representatives and the transaction proceeds through the normal conveyancing process.

Preparing to buy a property at an auction

Auction contracts are designed to be unconditional and immediately legally binding. Bidders must be prepared to sign and exchange contracts on the day of the auction and pay the required deposit stated in the terms of the contract. Before bidding for a property, potential buyers should be completely satisfied with the property and have finance approval, if required, before placing a bid. Bidders should also have arrangements in place for payment of the deposit.

Before attending the auction, bidders should ensure they arrange valuations, pest and building reports, obtain whatever information is available about the property and investigate anything they believe is required and relevant.

We are experienced property lawyers having managed numerous conveyancing transactions for our clients. We manage the entire conveyancing process from reviewing and negotiating contract terms, liaising with lenders and agents, obtaining searches and enquiries, and attending settlement, which is now conducted online via an electronic platform.

There are many steps involved in ensuring the title of a property is effectively transferred from a seller to a buyer and that the parties’ each meet their respective obligations under the contract. Our property conveyancing team can coordinate the entire process, protect your legal rights, and ensure your matter is completed as seamlessly as possible.

If you need any assistance, contact one of our lawyers at [email protected] or call 07 5495 2733 for expert legal advice.