When Property Conveyancers were licensed some years ago it revolutionised selling. Suddenly there was a low-cost alternative to a Property Solicitor.
Up to this point you needed the services of a Property Solicitor when buying a home. And, naturally Property Solicitors were not happy to have one of the mainstays of their business being reduced so much when it came to property conveyancing, particularly in smaller type suburban practices.
In most cases with property conveyancing there is little difference in what Property Solicitors and Property Conveyancers do with regards to a home sale.
Both are equally competent. However, a Property Conveyancer, outside of a legal practice, cannot do any other legal work for you and will not usually possess a degree in Property Law.
This may be important if the property sale is part of a wider process that needs legal input, or, if the sale itself is complicated for any reason.
Buyer Marketing recommends a Contract of Sale is best reviewed by a Property Solicitor before you sign it. They are qualified to look at the terms & conditions and point out anything you might not be aware of. If there are any special conditions they will explain the implications and may recommend amendments if required.
Property Conveyancing law differs between Australian States and Territories. But there are certain principals that stay the same. A Sale of Land Contract must be in writing. Every State and Territory has passed legislation defining the form of the contracts and the process of the exchange.
This is driven by principles of consumer protection. By ‘consumer’ the legislators are focused on protecting Buyers.
A Vendor’s Statement also known as a Section 32 in Victoria has to be prepared by the seller’s legal representative before documented offers can be received from buyers. Of recent times, legislation changed to ensure no offers could be received or documented on a Contract of Sale until the Section 32 has been signed by the vendor(s).
As a buyer you should always request to see the Section 32 Vendor’s Statement and Buyer Marketing’s always encourages its clients to have this reviewed by a legal representative before making an offer.
Some jurisdictions (Victoria, New South Wales & South Australia) operate on the basis of ‘implied warranty’ and ‘vendor’s disclosure’ which means it’s the seller’s responsibility to have the Contract inform a potential buyer with a lot of information about the property, so the buyer can make an informed decision.
This would include information about the Title of the property and any restrictions on it that might apply, like caveats. Other information would be the seller’s identity and particulars and those of the mortgagor if there is one, information about planning, drainage and sewer, building permits, council notes, or other issues that could impact on the property.
A lot of this is contained in mandatory annexures like a Council zoning certificate, or a sewer diagram from a water authority.
The exact list changes from State to State. It’s an offence, subject to a fine, for knowingly or recklessly providing false information, or not providing all required information. In the States that have vendor disclosure obligations, the emphasis is on ’seller declare’.
But of course, it’s always going to be a case of ‘buyer beware’ as well, regarding physical condition of the property, permitted use of the property, and the use for development of the adjoining properties.
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