Steps through to Settlement

Conveyancing – Steps through to settlements.

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Step 1 Contract of sale

The contract of sale is a very important legal document. Many disputes arise between vendors and purchasers. Consequently, trained experts should prepare the document. Under various laws, the contract must contain specified documents, certificates and disclosures.

Step 2 Make an offer

When a potential purchaser decides they are interested in a property, they may make an offer to purchase it. The vendor may accept this offer, or alternatively, the purchaser and vendor may enter into negotiations over the price and conditions of the sale. This is generally referred to as sales by private treaty.

Step 3 Paying a deposit

Purchasers may decide to pay an initial deposit as a sign of good faith of their interest in the property. The amount of such deposit can vary and will generally be stipulated by the vendor or agent. This will not mean that a binding contract exists or that the property is removed from the market. The payment is simply to show the vendor that the purchaser is serious about their offer.

Note that ‘holding deposits’ will generally be non-refundable.

However, in Queensland, it is unusual for holding deposits to be used except for off the plan sales and it is illegal for such deposits to be non-refundable. If the vendor later accepts an offer, the vendor and purchaser agree to exchange contracts. At that point, the purchaser pays an agreed deposit amount. The deposit is usually 10% of the purchase price and is held by the real estate agent or the solicitor/conveyancer.

The purchaser should not exchange a contract for sale until they have reviewed the contract with their solicitor/conveyancer.

Gazumping

Note: gazumping is a common practice that can take two forms:

(a) the intending purchaser believes the property has been secured by payment of an initial deposit but when they are ready to exchange contracts, discover that another purchaser has already exchanged contracts on the property; or

(b) the vendor’s solicitor/conveyancer accepts two or more initial deposits and then tells the intending purchasers that the price has increased. The intending purchasers are then left to outbid each other as if it were an auction.

Step 4 Exchange of contracts

Refer appendix 1 for the different ways contracts are exchanged.

Step 5 Cooling off period

After exchange, the purchaser of residential real estate may have a time to “cool off”. If a cooling off period applies, the purchaser can rescind the contract before the end of the cooling off period. Details of cooling off provisions are set out in Appendix 2.

Step 6 Risk

Responsibility for damage to the property remains with the vendor up until settlement or completion of the sale, but it is prudent for the purchaser to insure the property from exchange of contracts. From settlement, when the property title is transferred to the purchaser, the purchaser is responsible for damage.

Purchasers may choose to insure the property before settlement if they are unsure whether the vendor has a current insurance policy. If purchasing a unit under strata title, the purchaser should obtain a Certificate of Currency from the owners’ corporation’s insurer to make sure the property is adequately insured.

Many lenders require evidence of comprehensive building insurance being in place, with the lender noted on the policy as an interested party, as a condition of settlement of the loan for the property purchase.

In Queensland and ACT, the risk passes to the purchaser when the contract is formed.

Step 7 Transfer of Property

The purchaser’s solicitor/conveyancer must prepare a transfer document, have the purchaser sign it, and pay any stamp duty for the document’s registration. The purchaser’s solicitor/conveyancer must then send the transfer to the vendor's solicitor/conveyancer for the vendor to sign. In Queensland, the vendor must sign the transfer form before it is stamped.

The purchaser’s solicitor/conveyancer must arrange for the transfer document to be stamped prior to settlement so the purchaser can lodge it for registration immediately after settlement. This is often a requirement of the purchaser's financier, so that it can register the transfer and its mortgage promptly. This means that the purchaser must arrange to provide their solicitor/conveyancer with the stamp duty amount prior to settlement, or arrange for stamp duty to be paid at settlement (e.g. from loan proceeds). It is not possible to defer the payment of stamp duty on the transfer.

Step 8 Transfer of Property

The time for completion can be set by agreement between the parties. The time span for completion of “off the plan” purchases can be quite lengthy. This is because the contract can be completed only after the development/building construction has completed and new titles are issued. The standard times for completion are set out in the table below, but these periods can be changed by agreement between the vendor and the purchaser.

Failure to complete

This means failure by eitherparty to complete on a nominated date is a “breach of afundamental term”. If there is a breach of afundamental term, the other party can terminate thecontract, forfeit and keep the deposit (in the case of abreach by the purchaser), and sue for damages.

Example: A real estate contract provides for completion “within 90 days of exchange, time of the essence”. If the purchaser does not complete on or before that date, the vendor can terminate the contract, forfeit the deposit, and sue for damages.

Only in Queensland is time normally of the essence, although time can be expressed to be of the essence in any State or Territory.

Contracts that are not time of the essence frequently contain a provision entitling the vendor to give the purchaser a notice (usually 14 days) making time of the essence for completion at the end of the 14 day period. Example: A real estate contract provides for completion within 42 days of exchange, not time of the essence. If the purchaser does not complete on or before that date, the vendor can issue a notice to complete to the purchaser making time of the essence for the end of the notice period.

State/Territory

Usual period for settlement

(all subject to contract)

QUEENSLAND

30 days time of the essence

NEW SOUTH WALES

6 weeks

ACT

30 days

VICTORIA

30 to 90 days

TASMANIA

30 days

SOUTH AUSTRALIA

4 to 6 weeks

WESTERN AUSTRALIA

4 to 6 weeks

NORTHERN TERRITORY

30 days

Step 9 Requestions

After exchange, the purchaser’s solicitor/conveyancer will usually send a list of formal questions about the property known as requisitions on title. Requisitions obtain from the vendor information that may not have been previously disclosed or discovered during inspection of the property (for example, disputes with neighbours relating to fences). The standard contracts used in Queensland prohibit the delivery of requisitions on title but instead contain some basic warranties about the vendor’s title.

In Victoria, requisitions on title have been replaced by warranties in the contract, in particular General Condition 2 of the approved form of contract. The vendor’s solicitor/conveyancer will reply to these requisitions.

The purchaser’s solicitor/conveyancer will often make some additional searches and enquiries not made before exchange. These searches are to determine a variety of factors, including whether there are general defects in the title, the land is contaminated, or there has been construction on the property. If any of these result unsatisfactorily in a way not disclosed in the sale contract, the purchaser may be able to rescind the contract, sue for damages, or seek a reduction of the sale price.

Step 10 Outgoing mortgagee

If the vendor has a mortgage over the property, the mortgagee must be contacted to provide a pay out figure and attend at settlement to hand over a discharge of mortgage and, often, the certificate of title/title deed.

Step 11 Adjustments

At settlement, “adjustments” will be made. Example: the council rates have been paid for the whole year. The purchaser must pay an additional amount to the vendor for the proportion of the year the purchaser will own the property. Usual adjustments are council rates, water rates, strata body corporate contributions, land tax and rent if the property is tenanted.

Step 12 Settlements

The sale is said to settle or complete on the day the purchaser pays the balance of purchase money, plus or minus adjustments, to the vendor. On the day of settlement, it is important that a final search of the title is obtained to ensure that the property is clear from any interest or restrictions that may have been recorded between the date of exchange and settlement. Usually the solicitors/conveyancers/mortgagees meet and hand over the title documents in exchange for payment.

Note that under the Personal Property Securities Act 2009 (Cth.), if chattels (i.e. goods) are included in the sale of a property, it is important that the PPSA register is checked to make sure that the purchaser receives a clear title to the chattels on settlement.

Step 13 After settlements

The purchaser or the purchaser’s mortgagee will register the transfer documents with the Land Titles Office.

Usually there will be a:

  • discharge of any existing mortgage/s;
  • withdrawal of any existing caveat/s;
  • transfer of title from the vendor to the purchaser;
  • mortgage from the purchaser to the new mortgagee.

The Land Titles Offices advise the relevant authorities (such as the local council, water authority and Valuer General’s office) that the property has a new owner. Note – if settlement does not occur

If settlement does not occur on the scheduled date, depending on the contract terms, interest at a rate specified in the contract (often higher than mortgage rates) will accrue from the date specified for settlement to the ultimate settlement date, if the purchaser fails to settle on the due date. In addition to paying interest, the purchaser may be given a notice to complete, making time of the essence. Once the time of the essence date is reached, interest continues to accrue but the vendor can rescind the contract and retain the deposit previously paid

Step 2 Buying at Auction

When a property is sold by auction, a purchaser is bound to purchase the property after having made the highest bid at the end of the auction. It is important for the vendor to have a solicitor/conveyancer examine the sale contract before the auction to make sure that everything is in order. It is also important that a potential purchaser has finance arranged and that all necessary property inspections have been done.

Before auctioning a property, the vendor will nominate a ‘reserve’ price that is not usually disclosed to potential purchasers. The reserve price is the lowest price the vendor is willing to accept. If the highest bid is below this price, the property will be ‘passed in’. The vendor will then either try and negotiate a price with interested purchasers or put the property back on the market.

If bidding continues beyond the reserve price, the property is sold at the fall of the hammer. The successful purchaser must then sign the contract for sale and pay the deposit (usually 10%) immediately

Step 3 Paying a deposit

Thesuccessful purchaser must then sign the contract for sale and pay the deposit (usually 10%) immediately.

Step 4 Exchange of contracts

Refer Appendix 1 for the different ways contracts are exchanged.

Step 5 Cooling off period

Cooling off does not apply to sales at auction.

 

Appendix 1.
Who handles conveyancing? How do contracts come into existence?

State/Territory

Who prepares the contract?

How is a contract formed?

(all subject to contract)

Queensland

Vendor’s real estate agent

Usually the purchaser signs the contract first and it is submitted to the vendor. If the offer is acceptable, the vendor signs the contract and a copy is delivered to the purchaser. A binding contract comes into effect when the purchaser receives this notification of acceptance. Often the vendor makes a “counter offer” by crossing out the price and inserting a price it would accept. This process continues until one party advises that it accepts the price proposed by the other. At this point, a binding contract is formed. The real estate agent usually arranges this and delivers copies to the vendor’s and purchaser’s solicitor once the contract is formed. Only lawyers can legally act on a conveyance in Queensland i.e. no conveyancers.

NEW SOUTH WALES

Vendor’s solicitor/conveyancer

The vendor and purchaser each sign one copy of the contract.

ACT

Vendor’s solicitor

These copies are exchanged (swapped), usually by the parties’ solicitor/conveyancer except for auction sales when the agent exchanges the contracts. Exchange can occur by mail or face to face.

VICTORIA

Vendor's solicitor or real estate Agent

The vendor and purchaser each sign one copy of the contract. These copies are exchanged (swapped), usually by the parties’ solicitor/conveyancer face to face.

TASMANIA

Vendor's solicitor/conveyance or real estate agent

The vendor and purchaser each sign one copy of the contract.

SOUTH AUSTRALIA

Vendor’s solicitor/conveyancer

As soon as both parties sign the contract of sale and the purchaser receives their copy, both the purchaser and the vendor are bound to the terms of the contract. The real estate agent usually arranges this and delivers copies to the vendor’s and purchaser’s solicitor/conveyancer.

WESTERN AUSTRALIA

Vendor’s solicitor/conveyancer

The vendor and purchaser each sign one copy of the contract. These copies are exchanged (swapped), usually by the real estate agent.

NORTHERN TERRITORY

Vendor’s real estate agent/solicitor/conveyancer

The vendor and purchaser each sign one copy of the contract. These copies are exchanged (swapped), usually by the real estate agent.

 

Appendix 1.
Cooling off provisions

After exchange, the purchaser may have a time to “cool off”. If a cooling off period applies, the purchaser can rescind before the end of the cooling off period. Cooling off does not apply to sales at auction.

State/Territory

Cooling off provision – when can the purchaser rescind?

Queensland

Five business days from exchange, unless waived by the purchaser, who has received “PAMDA Form 32a” signed by a solicitor. If the purchaser properly exercises its cooling-off right, the purchaser forfeits 0.25% of the purchase price.

NEW SOUTH WALES

Five business days from exchange, unless it has been waived by the purchaser, who has received a “Section 66W Certificate” from a solicitor or conveyancer. If the purchaser properly exercises its cooling-off right, the purchaser forfeits 0.25% of the purchase price. Some vendors may refuse to exchange contracts unless a signed Section 66W Certificate is provided.

ACT

Five business days from exchange, unless it has been waived by the purchaser who has received a “Section 17 Certificate” from a solicitor or conveyancer. The cooling-off period does not apply if the purchaser is a company. If the purchaser properly exercises its cooling-off right, the purchaser forfeits 0.25% of the purchase price. Some vendors may refuse to exchange contracts unless a signed Section 17 Certificate is provided.

Victoria

The purchaser may end the contract within three business days of the day that the purchaser signs the contract, if none of the exceptions listed below applies to the purchaser. The purchaser is entitled to a refund of all the money it paid except for $100 or 0.2% of the purchase price (whichever is greater).

  • The three day cooling-off period does not apply if:
  • The purchaser bought the property at or within three business days before or after a publicly listedauction, or
  • The purchaser and the vendor previously signed a contract for the sale of the same land, in substantially the same terms, or
  • The purchaser is an estate agent or a corporate body.

Tasmania

No cooling off period applies.

South Australia

Two business days. If the property is offered for sale by auction and the purchaser makes a successful offer prior to the auction date, a cooling-off period applies, unless the purchaser waives the right after receiving independent legal advice. The cooling-off period does not apply if the purchaser is a company. The cooling-off period commences on either the date of exchange or the date the purchaser receives the

Western Australia

Form 1 Vendor’s Statement, whichever is the latter. If the purchaser properly exercises its cooling-off right, the purchaser forfeits its holding deposit, which is usually $100.

Northern Territory

No cooling off period applies.

Four business days from exchange, unless it has been waived by the purchaser who has received a Section 21 Certificate. The cooling-off period does not apply if the exchange occurs within four working days prior to the auction date. If the purchaser properly exercises its cooling-off right, the purchaser is not liable to pay an amount of damages, costs or expenses and is entitled to return of any deposit paid under the contract.

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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