From Contract to Completion – How Do You Get There?

 

Although buying and selling real estate is something that many people aim to and/or actually do, there is a lot of confusion and lack of understanding about steps must take place between signing a Contract and money and keys being exchanged.

A conveyance refers to the process that takes place to have real estate transferred from a Seller to a Buyer.  Understanding the basics of what is involved in this process is of great assistance if you actually want to know what is going on with your contract, what you are paying your lawyer or conveyancer for, why some parts of the process take time and what sorts of things can become major issues so should be dealt with as early as possible. 

Laws governing the purchase and sale of land are State based, meaning that the conveyancing process is different in each State.  The differences in the conveyancing process do vary quite significantly, so it is absolutely vital to get the correct information for the State in which you are buying or selling the real estate.

An example of how different the process can be is that in New South Wales generally a purchaser undertakes their due diligence investigations and arranges finance approval before signing a contract to buy a property whereas in Queensland these steps are usually only undertaken after the parties enter a contract of sale.  Therefore unlike its Queensland counterpart, the standard form contract of sale in New South Wales does not include terms and conditions about the contract being subject to the buyer obtaining finance approval, being satisfied with a building and pest inspection on the property or being satisfied with the outcome of a pool safety certificate inspection.

 

Conveyancing  – Queensland Style

The major steps in a standard conveyance in Queensland after the contract has been signed by both parties are:

Calculation of Dates

  1. The fully signed Contract is provided to the nominated solicitors for each party.  The solicitors calculate the dates when conditions are due under the contract and confirm the due dates with each other to ensure everyone is on the same page.  The most common usual due dates are:
  • Date for the cooling-off period to expire;
  • Dates that special conditions noted in the contract require particular actions to be taken by.  Examples of these may include the date by which the Buyer must pay deposit monies, the date by which the Buyer has to notify if they wish to terminate the contract because they are not satisfied with a building and pest inspection conducted on the subject property, or the last date by which the Buyer can terminate the contract if they have not obtained satisfactory finance approval;
  • Date that settlement of the sale is to take place.

          Satisfaction of Conditions 

The Buyer undertakes due diligence investigations on the subject property and makes application for finance approval (if borrowing money to purchase the property).

 The Buyer is responsible for arranging any building and pest inspection to be conducted on the property.

The Buyer’s solicitors normally provide a list of searches that the Buyer can nominate to be undertaken regarding the property with various local authorities and in relation to the Seller to check for any matter that might affect the ability of the Seller to be able to transfer the property to the Buyer (for example, that the Seller is not bankrupt).

 In relation to finance approval, in Queensland usually a financier will not finalise a decision whether to grant the particular loan until after the contract has been signed and a copy given to the financier.  Commonly it will be at this point that the financier will arrange for a valuation of the property to be undertaken to assess if it is worth sufficiently more than the amount being borrowed so that the financier could get its loan money and costs back if the borrower failed to repay the loan.  If finance is formally approved then loan documents will need to be sent to the Buyer, signed by the Buyer and returned to the financier and then the financier will need to certify all the returned documents before being ready to actually release the loan funds.

 

Arranging Release of Encumbrances

The Seller must take all necessary steps to ensure that at settlement they can transfer the subject property to the Buyer free of all encumbrances.

 An encumbrance on the title of a property refers to a registered interest of a party other than the registered owner on the title of a property.  One of the main effects of an encumbrance on the title of a property is that the registered owner cannot transfer ownership to another person unless the encumbrance is formally released by registration of the relevant documents with the Titles Office.

The most common type of encumbrance on the title of a property is a registered mortgage.  If at the settlement date there is a registered mortgage on the title of the property being sold then the Seller must ensure that at settlement the Buyer receives the release of mortgage document.

The usual process for obtaining a release of mortgage document is that:

  • the Seller must make a written request to the financier holding the mortgage for the mortgage to be released;
  • The financier advises of the conditions that need to be satisfied before it will provide a release of mortgage document.  Most commonly the condition will be that some or all of the loan owed to the financier is repaid.;
  • If the Seller does not agree with the conditions of release provided by the financier then it is up to the Seller to sort this out with the financier;
  • The Seller must ensure that at settlement the financier receives any funds and documents it requires to provide the release of mortgage.

 Production and Execution of Transfer Documents 

The Seller must sign transfer documents to transfer his or her interest in the property to the Buyer.  Usually the Buyer’s solicitors draft transfer documents for the Seller to sign and return before the settlement date.  The Buyer’s solicitors are responsible for ensuring that the transfer documents are signed on behalf of the Buyer and that the correct stamp duty notation is imprinted on to the transfer documents.

Settlement Figures

The Buyer and Seller must agree on the balance purchase price to be paid by the Buyer at settlement.

The balance purchase price is the contract price for the property less the deposit monies paid by the Buyer and adjusted as required by the Contract.  The most common adjustments are for the following items:

  • the cost of agreed outgoings such as the rates, water and body corporate fees (if the subject property is a unit) for the day up to and including the settlement date;
  • division of rent if the property is leased;
  • the fee to register any documents that must be registered with the Titles Office before the transfer to the Buyer can be registered (such as the Release of Mortgage for any registered mortgage against the property owed by the Seller); and
  • any negotiated deduction amount  (for example, because the Buyer discovered after obtaining a building inspection that the property required some repairs).

The solicitors for the parties will calculate the settlement figures usually around a week before the settlement date.

 Settlement Arrangements

A time and place must be agreed upon for where settlement is to take place.

Usually it is the choice of the Seller as to where settlement will take place, and if there is a mortgage registered against the title to the property then settlement will normally take place at the office nominated by the releasing financier.

The settlement time and place must be booked both with the releasing financier and with the Buyer’s financier if the Buyer is borrowing money to complete the purchase.

In practice financiers will only take a settlement booking once all their requirements such as receiving the relevant loan or release of mortgage authority from the customer have been satisfied.

Cheque Details

The balance purchase price must be paid by bank cheques, but the Seller has to tell the Buyer how many cheques to bring and who they are to be in favour of.  If there is a mortgage secured against the property being sold then usually one of the settlement cheques will be in favour of the financier for the amount owing on the loan by the Seller.  Because interest continues to accrue on loan amounts then very commonly the releasing financier will not have the accurate payout figure required until the day before or day of settlement.

 Stamp Duty

The Buyer is responsible for ensuring that the necessary stamp duty is paid regarding the transfer of property by the settlement date.

Stamp duty is the tax the Queensland Government imposes on the transfer of property, and normally it is the Buyer who pays this tax.  The amount of stamp duty payable depends on the value of the property being transferred and if any exemptions or concessions apply to the particular transaction.

 Usually the Buyer’s solicitors will arrange for the Buyers to sign any necessary declaration form if a concession or exemption is being claimed, and will also arrange for the relevant notification of the transaction to be made to the Office of State Revenue and for the transfer documents and contract to be imprinted with the required stamp duty notation.  The transfer documents cannot be lodged with the Titles Office unless they have the appropriate completed stamp duty notation affixed.

 Settlement

Settlement takes place.  This refers to the meeting between the parties and their financiers where the Seller receives the cheques for the purchase price and the Buyer receives the necessary documents to allow the property to be transferred to the name of the Buyer.

 Registration of Documents to effect Change of Ownership]

The Buyer or their financier (if they have borrowed money to complete the purchase) takes the transfer document and any other necessary documents to the Titles Office so that the Buyer can be registered as the owner of the property;

 Notification of Change of Ownership

Notifications of the change of ownership are made to the relevant local council and water authority by the Titles Office once the transfer documents are registered.

 

As can be seen, conveyancing is complicated and there are many steps involving many different parties.  It is vital to give instructions to your solicitor regarding due diligence searches to be ordered as soon as possible as some searches can take ten to fourteen working days to be received, and to sign and return all documents associated with applications for finance approval and releasing of mortgages as soon as possible.  At the end of the day if a Buyer or Seller is not ready to settle because their financier is not ready then it is the party and not the financier who is at risk of being sued by the other party to the contract.

It is also really important that you engage a law firm to assist with your conveyance who will give you all the necessary information and advice in a clear and thorough manner, and that you are able to easily contact and communicate with the solicitor or paralegal managing your matter.

At Schubert Law your conveyance will be undertaken by solicitor Alicia Schubert directly.  If you would like assistance with a purchase of real property or have further questions then please contact our Alicia Schubert on 3711 2709 or send us an email.

Comments

  1. It’s interesting to learn about the conveyance process. Like you said, it seems like a good thing to know if you want to know what your paying your lawyer for. I haven’t ever looked into this process before, so I will have to study this out!

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