Property Law and Conveyancing
Property Law
and
Conveyancing
If you’ve come to this page, then you might be wondering:
- Do I need a Conveyancer or Property Lawyer to help me buy or sell a house?
- Should I be a Guarantor for my child’s bank loan?
- Do I need to have all of the council certificates for my home and pool, to be able to sell my property?
- Should I get a lawyer to review a commercial lease before I sign it?
- Can I make an offer to buy a home when I don’t have finance approval yet?
- Can I keep my water entitlements and sell my farming property?
- What are the stamp duty implications of transferring a property to my loved one?
- Can I transfer a property out of my super fund?
How can we help?
Buying or selling a property in NSW or Victoria (for personal or commercial use)
Subdividing, developing and leasing in NSW or Victoria.
Borrowing or lending against property in NSW or Victoria.
Transferring a property between related entities (including family farm transfers, and transfers involving trusts and superannuation funds)
Buying or Selling Property
Buying and selling property is something that most people will do in their lifetime, which can make it seem like a simple process. The truth is that when you're faced with the decision to buy or sell, you can find yourself in a maze of emotions, legal jargon, negotiation and red tape.
There are often competing factors when buying, such as moving quickly enough to secure the right property, and yet slow enough to allow time for due diligence. Or perhaps your business is booming, but now you have to find a new premises that won't be quickly outgrown.
When you've made the (often tough) decision to sell, the next steps are rarely clear. Especially when you start to think about choosing a listing agent, disclosing things about the property that you hoped wouldn't be noticed, paying off or refinancing your mortgage and timing things perfectly so that you, your business or your tenants don't find themselves homeless at the last moment.
And who can forget, the added confusion of living on the border and trying to understand the differences between NSW and Victorian property law.
We know that this is something that you don't do every day. We have lawyers, paralegals and legal assistants that have been assisting clients to buy and sell residential, rural, strata, retirement and commercial land for decades. We will use that knowledge to filter the complexity into concise advice, and give you clear recommendations about what to do next.
Frequently Asked Questions - Buying and Selling Property
In Victoria, a real estate agent can draft the relevant documents for a legally binding agreement. These are known as a Vendor Statement and Contract of Sale. However, real estate agents cannot provide legal advice and may not take all important issues into account.
You will need to engage a conveyancer or lawyer to complete the second half of the transaction, which involves the legal transfer of the property via an online portal.
In NSW, listing agents cannot complete the draft Contract of Sale that is required to put your property on the market. Similarly to Victoria, you will also need a conveyancer or lawyer to complete the conveyancing process.
There are also plenty of complexities that can arise in a property transaction. These include knowing what to disclose to potential buyers, obtaining the correct documents from your local council, navigating settlement delays and penalties and many other issues. Conveyancers are qualified to assist with some of the issues that arise, but not all of them.
For all of these reasons, we highly recommend that you seek advice from an Australian lawyer when buying or selling property. At Belbridge Fleming we have several lawyers and a licensed conveyancer to assist you.
It’s not a requirement, but it is highly recommended.
There is no cooling-off period when you are the successful bidder at an auction, so there is no room to change your mind. We quite often have clients call us during the week advising that they plan to bid at an auction that following weekend. If we have enough notice, we are always happy to review the draft Contract of Sale and advise of any red flags and risks prior to the auction.
The answer to this question can sometimes be a bit of a ‘chicken and egg’ situation.
In an ideal world, you wouldn’t make an offer on a property until you had ordered and received a pest and building report, obtained unconditional finance approval and inspected all local council records.
In reality though, the vendors (sellers) of the property may not remain patient while you do all of this, without some kind of commitment.
The way things typically unfold is that you would make initial enquiries with your bank to obtain conditional finance approval, make an offer on the property and then, if accepted, carry out additional due diligence.
You need to be careful about when during this process you actually sign the Contract of Sale, as you do NOT want to be bound to buy the property without a ‘get out of jail free card’ when you don’t know enough about the property and/or have not obtained unconditional finance approval.
We can help you to navigate all of these competing considerations.
Legally yes, practically… maybe.
In NSW, a Contract of Sale relating to a property with a swimming pool must include either a Swimming Pool Compliance Certificate or Non-Compliance Certificate.
Selling with a Non-Compliance Certificate is a bit of a ‘roll of the dice’ though. This is because the buyer of the property is bound to make the pool compliant within 90 days of settlement. Your listing agent may advise you that you have no hope of selling the property with that kind of condition in place.
It really depends on the interest you get in your property and how competitive the potential buyers will be.
In Victoria it is similar but slightly more complicated, as the above laws are being introduced slowly based on when your swimming pool was constructed.
If you are unsure, contact us and we will clear it all up.
They are as long as a piece of string, and depend on your own circumstances.
For example, GST may be payable on the sale of a property, unless you can rely on one of the available exemptions. These include the sale of eligible residential premises, farmland and of a going concern.
Stamp duty, Capital Gains Tax and Land Tax also need to be taken into account.
We can advise on some of the aspects of property tax, and you may need to obtain financial or accounting advice on other aspects. If you already work with an accountant, we would be happy to contact them on your behalf and ensure that everyone agrees on the best way to handle things for you.
Subdividing, developing and leasing
Subdividing, developing and/or leasing land might be something that you do as part of an overall conveyancing process. Alternatively, you may embark on a standalone subdivision, development and/or lease project.
All three of these processes can require input and/or approvals from surveyors, banks, local council, the ATO, state revenue offices and other inspecting authorities.
We highly recommend engaging a lawyer when you commence one of these projects, so that we can advise you of what is needed and when.
We can also give you advice on other overlapping considerations such as conveyancing and the impact that these transactions may have on your business, your commercial entities and your personal succession planning.
Frequently Asked Questions - Subdividing, developing and leasing
You should start by:
- Touching base with your local council to see if your land can be subdivided, and getting an idea of the requirements, fees and timeframes available.
- Speak to your bank, if the land is being used as security for a mortgage. The bank will need to sign off on the subdivision at some stage, and it’s best to know where they stand from the beginning.
- Speak with a surveyor about options for your land, restrictions that may apply and to discuss likely costs and time frames.
- Speak to a lawyer and find out when and why they should be involved.
The lengthiest part of the entire process is likely to be obtaining a Development Approval (or state-based equivalent) from your local council. Depending on the development, you may be responsible for roads, street lights, roundabouts, waste management and many other matters.
Lawyers aren’t typically involved with this part of the process, but can be consulted if you are seeking to challenge a decision made by your local council.
An experienced surveyor is vital to a project like this, and you should find one that you can trust.
If you plan to sell some of the lots in the development once complete, you should engage a lawyer early and keep them informed of developments so that they can keep you updated about any property law consequences, and get a head start on conveyancing document preparation.
Legal advice and lawyer-involvement is not always needed to accept a tenant’s lease option renewal.
Technically speaking, this should be a simple process.
The issue that arises is that there may have been changes to the law relating to leases since your initial lease was entered into. For this reason, it can better for you as a landlord to enter into an entirely new lease at the beginning of an option period.
Reach out to us if you would like your lease reviewed or new documents drafted.
It is imperative that the notice to exercise the option to renew the lease must have been received by the landlord within the exact ‘window period’ of dates set out in the lease. If the notice is received outside of that window period of dates, then the tenant’s right to renew the lease is lost forever.
The law relating to residential tenancies is designed to be easily understood by everyone. Where confusion arises, there are many online resources to assist residential tenants and landlords.
For these reasons, you shouldn’t need legal advice to enter into a residential tenancy agreement. If you think that your tenant or landlord has breached the tenancy agreement and your rental agent has been unsuccessful in resolving the matter, you may need to reach out to us.
Borrowing or Lending
Borrowing and lending can be as simple as making an online enquiry with a bank and submitting a few payslips. It is bound to be more complicated if you run your own business, are self-employed, have more complex entities or are borrowing in the name of a trust or superannuation fund.
Lawyers come into the picture to provide advice on:
- Loan documents before you sign them, if you are not confident that you understand them yourself
- Guarantor documents – legal advice on these is highly recommended, and sometimes required by the financial institution
- Borrowing money from or lending money to family members. Great care needs to be taken to ensure that you are protected and understand your rights and obligations
- Borrowing money from or lending money to one of your other entities. For example, putting money into a trust to purchase a property
Frequently Asked Questions - Borrowing or Lending
It is highly recommended.
Regardless of the strength of your relationship right now, things can unfortunately change in the future. There are also events that can occur even if your relationship stays strong, that are completely out of your control.
There are many factors to consider when lending or gifting large sums to your children such as the terms for repayment (if relevant), the possible forgiveness of the loan when one of you passes away, the impact on any other children that you have, the future financial position of you and your child, and many others. As you can see, a simple concept of transferring money to a loved one quickly unveils elements of property law, family law, financial planning and succession planning.
Legal documentation aims to protect you from as many of these factors and variables as possible. A verbal arrangement can be hard to prove, and as a matter of law, a transfer of money from a parent to a child will be presumed to be a gift of that money (not a loan) unless there is some definite proof that it was meant to be a loan.
Alarm bells should always ring in your mind if you are asked to sign documents that you don’t understand.
Bank loans may seem inevitable these days, but that does not mean that you should assume that everything is ‘fine and normal’ and sign your life away without giving it another thought.
You should always take the time to read the documents and you should absolutely reach out for legal advice if you get to the end and still have no firm understanding of the consequences of the loan that you are seeking.
Yes – but it is much more complicated than a standard property loan.
A loan of this nature is known as a Limited Recourse Borrowing Arrangement.
There are also strict rules of compliance when borrowing through your superannuation fund, not to mention the fact that it is a significant investment decision.
We highly recommend financial planning, accounting and legal advice before you proceed with a transaction of this nature.
Vendor finance means that a portion of the purchase price is not technically paid at settlement. It is instead owed to the previous owners (the vendors) by you as a loan.
You can negotiate the terms of the loan with the vendor such as the final repayment date, regularity of payment instalments, interest rate and other conditions.
The vendor will get their lawyer to draft up a Loan Agreement to be attached to the Contract of Sale, and you will need a lawyer to review it. They will be able to explain the risks of the agreement to you before you sign.
Related-party Transfers
We don't blame you for thinking that transferring a property to a family member or into one of your own entities should be pretty simple. Unfortunately, this is not the case. In almost all cases in fact, it is more complex than transferring property to or from an unknown third party.
This is because the state revenue office (stamp duty offices) in particular, don't trust that you are making honest declarations about a property transfer that is not an 'arms length transaction'.
It is easy to miss things when carrying out transfers of this nature, and it is important to get the correct advice from lawyers, accountants and financial planners.
Frequently Asked Questions - Related-Party Transfers
You will rarely see a law firm make blanket statements about stamp duty. This is because the ‘eligible requirement goal posts’ are constantly moving.
A transfer of your principal place of residence into the names of you and your spouse or de facto partner does typically attract a stamp duty exemption or concession.
You should get updated advice when the time comes for you to seriously consider this.
Legal advice is highly recommended to unpack why you seek to transfer the property. Your decision may impact future family law issues or succession planning without you realising.
This is part of the much bigger question ‘how do I plan for the future of my family farming business?’.
These plans should involve collaboration between lawyers, financial planners, accountants and every member of the impacted family.
Each family member should also get independent legal advice to ensure that everyone’s best interests are taken into account.
This can be done, if the relevant requirements are met. It is often a lengthier and more costly exercise than people expect, so you should seek advice early and weigh up the pros and cons.
