What is conveyancing?
Conveyancing is the legal process of transferring real estate from one party to another, whether it be residential, rural or commercial property, a house, vacant land or unit off the plan.
Signing a contract to buy or sell property creates binding obligations between the parties – the penalties for default on a contract can be significant, and it is important to understand the legal implications before entering such arrangements. The transfer of property can also trigger financial considerations such as capital gains tax, land tax and stamp duty, which must be factored into the transaction.
The conveyancing process
During the conveyancing process, your legal team manages the administrative and legal requirements for a property transaction.
Buying property involves recommending and conducting a series of searches and investigations to ensure buyers not only receives clear title to the property but understands exactly what they are purchasing. Our property team will carry out the necessary due diligence, review and negotiate contract terms and flag any issues. We will liaise with your lender and agent, arrange and complete settlement of your purchase and generally look after your legal interests.
Selling property requires that a compliant written contract be in place with specific disclosure documents as prescribed by legislation. Sellers must understand the terms and conditions of the contract generally as well as any warranties that must be provided by law. We will explain your legal obligations under the contract and include any specific conditions to protect your interests and ensure your sale proceeds as smoothly as possible.
What is e-conveyancing?
Traditionally, settlement of a conveyancing transaction involved the physical meeting of lawyers and bankers to check and swap documents and bank cheques, and the lodgement of documents with government authorities to change ownership of the property. An error as simple as a misspelt middle name could cause settlement to fail and all parties would need to reschedule, causing inconvenience and undue cost.
E-conveyancing has revolutionised this process through an electronic platform which enables lawyers, conveyancers and financial institutions to transact online, improving transparency and efficiency and streamlining manual processes and paperwork.
Online settlements remove the location and time barriers of physical settlements, visually track the progress of each stage of the transaction and facilitate online lodgement of documents with land registries and authorities and faster access to sales funds.
Ownership interests in property
Consideration of ownership interests when acquiring property with another party can help prevent unintended outcomes in estate planning, and protect your legal interests, which could be threatened by financial stress or breakdowns in personal or business relationships.
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.
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.
Getting a mortgage
Most people rely on a loan from a lending institution to help finance the purchase of a property. A mortgage is essentially a ‘statutory charge’ in favour of a lender over property held in the borrower’s name. The mortgage secures the repayment of the money loaned and is registered on the title to the property. It is important to understand the mortgagee’s rights on default of a loan agreement and to obtain legal advice before signing your loan documents.
Commercial and retail leasing
A commercial lease governs the relationship between a landlord (lessor) and tenant (lessee) regarding the lessee’s right to occupy premises owned by the lessor. Commercial leases are frequently the subject of legal disputes which often occur due to poorly drafted, ambiguous or non-existent lease agreements, or the failure of the parties to understand the terms of the lease.
Retail leases are commercial leases regulated by specific legislation which typically applies to premises within shopping centres or that are used wholly or predominantly for conducting a retail business. Retail leasing legislation aims to enhance consumer protection by stipulating minimum terms and conditions and limiting certain provisions that are deemed unreasonable for a lessee. The legislation also imposes certain disclosure obligations upon a lessor.
Lessors and lessees should obtain appropriate advice to ensure their negotiations are properly reflected in a lease agreement, and the provisions comply with any relevant legislation.
Property law is complex and generally involves large sums of money. Our experienced team has assisted many individuals and businesses across a range of property matters, protecting their interests, minimising risk, and resolving disputes.