Below, some frequently asked questions about conveyancing. For more information, contact Excel Conveyancing Service.
Q: What is conveyancing?
A: Put simply, conveyancing is the legal process of transferring the title of a property from one person to another.
Q: Why should I use a conveyancer?
A: Buying or selling property is one of the biggest financial transactions or your life. Due to the financial and legal aspects of transferring property, the consequences of making a mistake can be both costly and heartbreaking.
By having a Certified Practing Conveyancer take care of your property transfer, their qualifications and experience can help protect your assets.
A Certified Practising Conveyancer has an in-depth understanding of the law concerning property transactions, is required by law to carry professional indemnity insurance and fidelity insurance, and unlike certain solicitors that offer conveyancing, can focus solely on property transfer instead of other legal matters.
Q: What is the cooling off period and how does it affect me?
A: A cooling off period is the right of a purchaser of property to cancel the agreement within 5 working days. It offers some protection to purchasers that may have rushed into a contract to purchase property and can be used to finalise financial arrangements or perform title searches. Cancelling the agreement (or rescinding, as it is known) will cost the purchaser 0.25% of the total purchase price. The purchaser is entitled to a refund of any balance of deposit, if any.
The cooling off period does not always apply (at auction, for example) and can be waived by providing a 66W certificate signed by a conveyancer who has explained the Contract to his or her client and has briefed the client with regard to the implications involved of waiving the cooling off period.
Q: What is a disbursement?
A: A disbursement is one of the expenses incurred during the process of searching and obtaining a certificate from local government authorities or other relevant authorities or bodies etc.
Q: What happens if either party cannot settle on the due date?
A: The parties must complete by the completion date, if they do not, either party (if that party is entitled to do so) can serve a “Notice toComplete” which means the party on which the Notice was served upon has 14 days (including weekends and public holidays) to settle the matter. If the purchaser issues the notice to the vendor and it is left unsettled, the purchaser may have rights to terminate the Contract and appy to the Court to have the vendor complete the Contract and hand over possession or receive their deposit back.
When a “Notice to Complete” is issued by the vendor, and the transaction is not settled on the nominated date, the vendor may terminate the Contract and keep the deposit or call upon a Deposit Bond Guarantee and can place the property back on the market to sell.
The vendor is usually under the terms of the Contract, entitled to charge the purchaser interest for the number of days settlement is delayed. The contract usually stipulates the applicable interest rate.
Q: What happens at settlement time?
A: Settlement is the finalisation of the sale or purchase process. There are usually four parties involved – the buyer (purchaser) and seller’s (vendor’s) conveyancers and the banks for the vendor and purchaser.
On settlement, the purchaser’s bank will exchange cheques as per the instructions of the vendor’s conveyancer and in return, receive the Certificate of Title and ‘discharge of mortgage’ (if applicable) from the vendor’s bank.
Prior to settlement, the purchaser is entitled to make one (1) inspection of the property in the 3 days before a time appointd for settlement.
If prior to settlement the property in question has been damaged, there is a sufficient amount of time to take care of discrepancies prior to settlement.
Once the settlement date arrives, and settlement takes place, the keys can be handed over to the purchaser and the deposit is released (from trust) to the Vendor. At this stage, the Purchaser’s bank registers the title documents to change the ownership of title and mortgage.
The place of settlement is determined by whoever holds the deeds to the property, normally the discharging mortgagee (usually their head office). Your conveyancer or their settlement agent will attend the settlement on your behalf, there is no need for you to attend.
The keys to the property usually are left at the estate agent’s office by the Vendor for collection by the purchaser immediately after settlement.
On settlement, the deposit belongs to the vendor.
The risk as to damage to the property passes to the purchaser on settlement or immediately after the purchaser enters into possession of the property.
Q: Who notifies the authorities that I have purchased a property?
A: When your transfer papers are lodged with the Department of Lands for registration after settlement, the Department of Lands automatically notifies the Valuer General’s Department, the local Council and the Water Authority.
Other providers, such as the electricity company and telephone line providers will need to be notified by the parties.