Property Conveyancing is the act of transferring the ownership of real estate from one party to another, in this case, when a home is purchased.
When Property Conveyancers were licensed some years ago it revolutionised Conveyancing. Suddenly there was a Licensed, Specialised and usually lower cost alternative to a Solicitor.
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.
Property Solicitors versus Property Conveyancers
Under the laws affecting property conveyancing there is no difference in what Solicitors and Property Conveyancers do with regards to a home sale.
Both should be equally competent. However, a Property Conveyancer, outside of a legal practice, cannot do any other (non-Property) legal work for you and will not usually possess a full law degree. That said, Conveyancers are Qualified specifically in Property Settlements and must be Licensed by the Government to practise.
This may be important if the property sale is part of a wider process that needs legal input (for example, if Probate is not yet Granted in a Deceased Estate), or, if the sale itself becomes litigious for any reason.
Contract of Sale
Buyer Marketing recommends a Contract of Sale is best reviewed by a Licensed Conveyancer or a 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 Sale & Purchase/exchange.
This is driven by principles of consumer protection. By ‘consumer’ the legislators are focused on protecting Buyers.
What information’s contained in a Vendor’s Statement (Section 32)?
In Victoria, a Vendor’s Statement also known as a Section 32, and has to be prepared by the seller’s Licensed Conveyancer or Solicitor before documented offers can be received from buyers. The Legislation ensures no offers could be received or documented on a Contract of Sale until the Section 32 has been signed and served 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 Licensed Conveyancer or Solicitor 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 Sales Documents provide a potential buyer with a lot of information about the property, so the buyer can make an informed decision.
This includes information about the Title of the property and any restrictions on it that might apply, such as Easements for underground pipes, Restrictive Covenants, Caveats, etc. Other information includes the name and address of the seller and particulars of the mortgagee, if there is one, information about planning/Zoning, drainage, sewer and other services, building permits, council rates, and other issues that could impact on the property.
A lot of this is contained in Certificates that are typically attached like a Planning certificate, Roads Certificate, Water Authority certificate, etc.
The exact Vendor Disclosure requirements are different 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’, and serious disclosure can make the Contract “Voidable at the Purchaser’s Option (meaning the Purchaser can Terminate the Contract at any time, right up until Settlement.
But of course, Due Diligence by a Purchaser is still very wise, and, to a degree, it’s still a case of ‘buyer beware’ as well, particularly regarding physical condition of the property, and the use for development of the adjoining properties.
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