What is Conveyancing?
Conveyancing is the process involved in the transfer of the legal title to real estate between two parties. Usually, your conveyance will start from the time you enter into your contract and continues through the duration of the contract as various conditions such as finance approval and building inspections are satisfied, culminating in settlement where the relevant legal documents are exchanged and the purchase price is paid.
What is Settlement?
Settlement is the day on which the representatives of all parties, including any financiers, meet to exchange documents. Final document checks are performed to ensure accuracy and completeness, the relevant legal documents are exchanged, and the purchase price is paid. The buyer and seller do not need to attend settlement, it is their appointed representatives who attend on your behalf.
What is the difference between a Conveyancer and a Solicitor?
Both a conveyancer and a solicitor can assist with your sale or purchase. A conveyancer is limited in the nature of transactions that they can be involved in and the advice that they can give. Only a solicitor can help with more complex legal issues that may arise during the conveyancing process. If you have appointed a conveyancing firm to do your conveyancing they may need to refer you to a solicitor in certain circumstances. Sam Pratt is a very experienced commercial solicitor who specialises in property matters. Sam was a senior associate at Minter Ellison for more than 10 years before establishing Cormiston Legal.
What if there is a legal issue with my contract?
As Cormiston Legal is a law firm we can provide advice and guidance when legal issues arise in relation to your Tasmanian conveyancing.
Is there a 'Cooling Off Period' applicable to Conveyancing in Tasmania?
No, there is currently no cooling off period for real estate contracts in Tasmania. The Government of Tasmania has considered introducing legislation requiring a two day cooling off period for all residential property sales. However, no legislation has been passed as at September 2014. However, as a purchaser you can request subject to finance, building inspection and other conditions in the contract of sale. The effect of properly drafted conditions (the legal term for these condtions is 'conditions precedent') is that if the conditon is not met or the purchaser has not waived the benefit of the conditon then the contract comes to an end and the purchaser is not required to purchase the property.
Who prepares the Contract of Sale?
It is standard practice for conveyancing in Tasmania for the real estate agent acting for the Seller to prepare the Contract of Sale. However, if there is no agent involved or the transaction is complex and requires special clauses to be drafted, Cormiston Legal can prepare any special conditions or the Contract of Sale. For purchasers it is strongly recommended that you ask your solicitor to review the contract before signing it. The contract may appear to be standard, however there are many pitfalls in signing a contract without having it reviewed by a solicitor.
What is a 48 hour clause?
A 48 hour clause is sometimes included in a contract to protect the Vendor. A buyer may agree to buy a property but make the purchase subject to the sale of their own property. However, if the property that the purchaser is selling remains unsold for a long period the vendor will most likely be disadvantaged. The 48 hour clauses means that the vendor can continue to advertise the property for sale and if, during the period that purchaser is trying to sell their own home, a new buyer is interested in buying the property, and they make an offer that the vendor is willing to accept then the original buyer is given 48 hours to waive the condition relating to the sale of their property. If the original buyer does not waive that condition within 48 hours of the issue of a notice from the vendor, the vendor may accept the offer frm the new buyer and proceed to sell the property to the new buyer.
Will I need to come to your Office during the Conveyancing process?
It is important to understand that once an offer to purchase is made by the Purchaser and accepted by the Seller the contract is formed and both the Purchaser and Seller are bound by the terms of the Contract, as there is no cooling off period in Tasmania. It is best to see us as early as possible so that we can provide you with valuable advice on any proposed contract.
What are ‘searches’ in the Conveyancing transaction?
Searches are performed to help identify legal, ownership or property issues. The results also provide peace of mind that the property is not subject to any current or known future plans or licences issued by government, or affected by inclusion on any registers such as heritage listing.
Searches also determine whether there are any encumbrances over the title of the property that need to be addressed prior to settlement – such as mortgages, easements, covenants, caveats and any other agreements. If any of these are recorded against the title of a property you plan to buy or sell, we will inform you of your rights and obligations.
Who pays Stamp Duty?
Stamp duty is payable by the purchaser on all transfers of real estate in Tasmania with a few exceptions, however, there are no pensioner concessions. The amount of duty is determined by the purchase price, the greater the price the greater the stamp duty. Click here for more information about stamp duty http://www.cormistonlegal.com.au/services/stamp-duty-explained.
What are ‘settlement adjustments’?
Part of the conveyancing process involves making relevant adjustments in the purchase price to account for each party's share of fees such as local government rates, state government levies or taxes (for example, land tax) and body corporate or strata fees for units.
When do I pay costs and fees?
All costs and fees are paid prior to or on completion of the transaction. For a purchaser, prior to settlement of your purchase we will provide you with a statement setting out the amount you need to pay to complete your purchase. This will include the purchase price (less any commission paid), your share of rates and any land tax, filing fees, stamp duty, search fees and our costs.
For a sale we would normally, subject to your consent, deduct our costs and fees from the proceeds of sale with the balance proceeds paid to you or your bank.
Who notifies the Council and other relevant authorities of the sale or purchase?
Once the transfer documents are registered at the Land Titles Office, they provide written notice of the change in ownership to the relevant Council, the Land Tax Branch and Valuation Division of the State Revenue Office. We will notify Tas Water of the change in ownership.
If you are buying or selling property and require assistance, please contact Dane Edwards, our conveyancing expert, on 03 6332 9326.
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