Overview of what Conveyancers do casino

Conveyancing – Overview of the Process

Conveyancing refers to the sale of real estate from a vendor (seller) to a purchaser (buyer).

Conveyancing can also refer to the process under which a mortgagor (usually a property purchaser) gives a mortgage to a mortgagee (usually a bank or other lender).

The General Process

In all States and Territories, conveyancing follows the same general process

Contracts come into existence
This is when the sale agreement becomes binding.
A 10% deposit is usually paid.

Settlement/Completion
The balance of purchase money is paid and title
transfers to the purchaser.

Title documents registered
The land registration details are changed to
show the purchaser as the owner..

Need for a contract

Generally a binding contract to buy, sell, or mortgage real estate can only be created by written agreement. Contrast this with many other transactions that do not require writing (e.g. buying goods at a shop, agreeing to get married).

A contract to buy or sell real estate is probably the largest and most important transaction into which most individuals will ever enter, other than marriage vows. It is also a contract about which there is often much dispute (“you didn’t tell me that the views would be blocked”). Accordingly, it is important to be very precise about when the obligation to buy and sell arises. If there is any correspondence about a proposed sale that is not intended to create a binding contract, it is important to say “subject to formal contract.”

The way contracts come into existence

There are subtle but important differences between the manner in which contracts come into existence in each State and Territory.

In most jurisdictions, the real estate agent usually conducts the exchange and the negotiations leading to the exchange. However, in NSW and the ACT solicitors/conveyancers are often significantly involved.

Accordingly, in NSW and the ACT there can be much more haggling about the deal after the real estate agent declares a property “sold” and before a binding legal agreement is created.

Types of title

Torrens Title – a system of registering land introduced in South Australia in 1858, formulated by then colonial Premier of South Australia, Sir Robert Torrens. Since then, it has become common around the Commonwealth of Nations and the whole world. Under the system, the Titles Office maintains a registry that is nearly final proof of who owns a parcel of land. Freehold – a right to own the land forever. Also referred to as fee simple. This is different to leasehold, which refers to a right to occupy the land for the term of the lease.

Freehold Torrens Title – the most common ownership system except in the ACT. Usually, this is just called Torrens Title because it is assumed the ownership is freehold unless specified to be leasehold.

Strata Torrens Title – relates primarily to home units, although some other properties can be strata (e.g. villas, townhouses etc).

Community Title – individuals own lots or strata lots within a community scheme. Under a community scheme, a number of owners share some community property (e.g. a tennis court, a community centre, roads and access ways).

Leasehold title – under this title, ownership ends at the end of the lease. Most leasehold titles are for 99 years. This is very common in ACT and also for rural properties in Queensland, but comparatively rare elsewhere. Company Title – similar to strata title. The owner owns shares in a company and in turn the company owns the land. Each class of share entitles the owner to occupy a particular unit.

Old Title (also known as Common Law Title) – this consists of a series of title documents called a “chain of title”. Following a sale, Old Title will usually be converted to a full Torrens Title. A limited or qualified Torrens Title will issue first, showing that the title cannot be guaranteed. Action may later be taken to convert the title to a full Torrens Title.

Understanding “legal speak”

Exchange - when a binding legal contract to buy and sell land comes into existence. A deposit of 5% or 10% of the purchase price is usually paid at the time of exchange and usually held by a stakeholder (the vendor’s real estate agent, solicitor, or conveyancer) until completion of the contract.

Completion or Settlement - when the balance of the purchase money is paid over, the title is transferred to the purchaser and (usually) the purchaser takes possession of the land.

Property - can refer to any kind of asset at all including land (also called real estate), goods (also called chattels), fixtures (goods which are attached to land), choses in action (rights to sue people) and non-physical rights such as intellectual property and confidential information.

Accordingly, when referring to real estate it is better to use the term real estate or land rather than the general term property.

Person - means any legal entity. This includes individuals (i.e. human beings), companies, strata bodies corporate and statutory corporations (e.g. local councils)

Disclaimer

This guide has been prepared to provide a generalguide to the conveyancing process (i.e. the process for selling and buying real estate). The processdiffers significantly from State to State.

The information included is not definitive andshould be treated as a guide only. You should always seek expert advice from a qualifiedpractitioner regarding any conveyancing matter. You can find one here.

This guide relates primarily to residential sales

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