Conveyancing & Property Law

Conveyancing

Conveyancing is the process of transferring the legal ownership (title) of property from one person or entity to another. Many people in Australia buy or sell real estate during their lifetime which can create the impression that conveyancing is a low-risk exercise. On the contrary, however, there are major risks involved in any property transaction. Conveyancing time limits are strict and there can be significant financial consequences for any party that misses a deadline, even when it is an innocent mistake. Insufficient due diligence or not understanding your legal position before entering a binding contract can have huge consequences.

Buying and Selling Property

Sellers of residential property in Victoria will need a written contract prepared and a vendor’s statement (section 32 statement) before offering their property for sale. The vendor statement contains important details that affect the property including certificate of title search, council planning details, and contaminated land certificates, amongst other things. This information helps potential buyers make an informed decision about the property.

Buying a property is usually a huge financial investment. It is also often an emotional journey, especially when the property is going to be your family home. While most people are aware of the importance of due diligence (such as ordering a building and pest inspection) they may not be familiar with the many other searches and checks that lawyers typically conduct on behalf of a buyer. Depending on the property, any one of these precautionary checks is essential to uncover undisclosed interests that can significantly impact the property you are about to buy.

We can explain your legal position and obligations as a buyer or seller. We will guide you through the entire conveyancing transaction, protect your rights and keep you informed every step of the way.

Most people rely on a loan to finance their property purchase. In accepting a loan from a bank or building society, your lender will require that you grant a mortgage over the property. Essentially, a mortgage is a ‘charge’ in favour of the lender. The mortgage secures the repayment of the money loaned and is registered on the property’s title.

Registration of a first mortgage protects the lender by creating priority for payment of the debt and alerting others who may be interested in the property. If the property is sold, the mortgage will need to be removed before it is transferred to the new owner. This can only occur when the secured loan is repaid, or other arrangements are made between the lender and borrower.

By signing a loan agreement and granting a mortgage you are liable for regular repayments and other fees and charges set out in the loan documents. Amongst other things, the agreement will usually stipulate that the property be adequately maintained and insured, and the lender will have a right to sell the property in the event of specified breaches. It is important to understand all your legal obligations as a borrower/mortgagor, which we can explain to you.

Property Ownership Interests

When you hold property as ‘joint tenants’, the interests are held as a whole and cannot be separately apportioned. Joint tenancy is subject to the rules of survivorship. If a co-owner dies, their share automatically passes to the remaining owner/s. In contrast, property held as ‘tenants in common’ can specify the individual shares held by each owner which need not be equal and may be transferred, sold, or left to a beneficiary in a Will.

The way that legal interests are held in property between co-owners is an important consideration when it comes to asset protection, succession, and estate planning. Complications and disputes concerning property can be triggered by changing circumstances – a relationship or business breakdown, financial stress, or the death of a co-owner. If you are buying or own property with another party, it is important to understand the legal implications of how your interests are held.

Conveyancing & Deceased Estates

Selling a Deceased’s Property: Key Steps and Considerations

Selling a deceased’s property involves a series of legal and procedural steps to ensure a smooth transfer of ownership. Here’s a guide to help you navigate this process:

1. Obtain Probate: The first step is to obtain a Grant of Probate or Letters of Administration from the Supreme Court. This legal document confirms the executor’s authority to manage the deceased’s estate, including selling the property.

Note: in some states the original will rather than probate is required to transfer the property to an executor or beneficiary.

2. Engage Professionals: It is advisable to engage a conveyancer or legal practitioner to assist with the sale. They can help prepare necessary documents, such as the Vendor’s Statement (in Victoria referred to as a Section 32 Statement) and the contract of sale, ensuring compliance with legal requirements.

You may also like to engage a Vendor’s Advocate who will assist you with the entire process, including arranging repairs or renovations, engaging a real estate agent and providing advice on the sale of the property.

3. Disclose Required Information: The Vendor’s Statement must include details such as title documents, planning information, building permits, and any notices or orders affecting the property. Accurate disclosure is crucial to avoid legal issues

4. Negotiate and Accept Offers: Once offers are received, negotiate terms with potential buyers. The executor or administrator must ensure that the sale price is fair and in the best interest of the beneficiaries.

5. Settlement: After accepting an offer, proceed to settlement, where the property ownership is officially transferred to the buyer. Ensure all outstanding debts, such as rates and taxes, are settled before distribution of the estate.

6. Distribution of Proceeds: After the sale, distribute the proceeds according to the will or the laws of intestacy if there is no will. This may involve paying off debts and distributing the remaining assets to beneficiaries.

Considerations
• Legal Compliance: Ensure all legal obligations are met, including obtaining necessary approvals and providing accurate disclosures.
• Tax Implications: Be aware of potential tax liabilities, such as capital gains tax, and seek professional advice if needed.
• Beneficiary Interests: Consider the interests and rights of beneficiaries throughout the process to avoid disputes.

Selling a deceased’s property can be complex, but with the right guidance and preparation, it can be managed effectively. Engaging professionals and understanding your legal obligations are key to a successful sale.

If you need assistance, contact Lisa Meersbergen at [email protected] or call 0428 527 528.