Property Transfer and Conveyancing
If you are buying or selling a house, land or business there are many issues you need to consider. For example, the manner in which a couple own a property can dictate whether or not you can leave your share of the property to anyone after your death.
It is a good idea to get advice from a solicitor on the most appropriate way to purchase a property. Scammell & Co. have solicitors experienced in this area of law. They can conduct the transfer for you at a competitive conveyancing rate.
Click on the questions below to reveal the answer.
I am not sure about the two different forms of property ownership; joint tenants on the one hand and tenants-in-common on the other. Can you please explain?
If you and your spouse / partner have purchased a property as joint tenants then, on your death, the property automatically becomes the property of the surviving joint owner.
You cannot, in your Will, leave your share of the property to anyone else.
If you and your spouse / partner have purchased a property as tenants-in-common then your share in the property is held separately and, after your death, your specific share forms part of your estate and is distributed in accordance with your Will. If you do not leave a Will then your estate, including your share in the property, is distributed in accordance with the laws of intestacy.
What is my right to cool off?
In many cases (not all) you have two business days to cool off after signing to purchase a property. If within those two days you serve an appropriate Notice on the Vendor or the Vendor’s agent you may ‘cool off’. However, you need to be aware that this does not always apply.
I have purchased a house prior to auction and the selling agent has asked me to waive my cooling-off rights. What should I do?
Make an appointment to see one of our property law solicitors as soon as possible. We are able to advise you and provide you with the necessary lawyer’s certificate if you choose to waive your cooling-off rights. Either way, you should make an informed decision as to how to proceed.
I have sold my house and it looks like the purchaser will not be able to settle on the agreed settlement date. What should I do?
You should seek advice from one of our property lawyers as to what rights and / or entitlements you have under the contract and what the best option is in your circumstances. There will often be a number of legal as well as practical matters to consider if, for example, you may wish to terminate the contract.
I have recently separated from my spouse and we have agreed that ownership of the matrimonial home will be transferred to me. What should be my next step?
In most cases it is desirable for separated couples to seek advice from a family lawyer with respect to the division of assets of the relationship. This is because any informal arrangements you enter into may be overturned if one of the separated parties chooses to take the matter to court.
Separated parties are often not fully aware of their rights and entitlements following a separation. They should therefore seek advice and formalise in writing any agreement reached for the division of assets.
Formal property settlement agreements can also avoid payment of stamp duty on your spouse’s share of the house, saving thousands of dollars. Scammell & Co. have family law solicitors who can help you.
What is a Section 7 Statement?
A Section 7 Statement is a document from the Vendor to the Purchaser which provides the Purchaser with detail and information about the property which the purchaser proposing to buy. The Vendor is legally required to complete and serve the document on the Purchaser and can be sued by the Purchaser if the document is wrong or misleading. Further, if the contract has not settled it may be possible for it to be cancelled if the form is inaccurate. It is a document which must be treated with great care and caution.
What is a Special Condition?
In negotiating a contract either party may require certain Special Conditions to be included in the contract. For example, the Vendor may wish to stay in occupation of the property after settlement for a short time or the Purchaser may require a condition that the contract is subject to finance, a soil report or a building inspection. If you want Special Conditions to be included they must be incorporated into the contract of sale before you sign it.
What is the insurance risk on sale of a property?
Usually the risk of a property being destroyed by earthquake, fire etc. and any other damage moves to the Purchaser immediately upon signing the contract. The Purchaser therefore needs to obtain insurance on the same day. However, the Vendor should not allow the Vendor’s insurance to elapse until after settlement.
What are Stamp Duty and registration fees?
On registering the transfer of a property at the Lands Titles Office, the State Government requires two payments, being:
- Stamp duty.
- Registration fees.
Both are charged on sliding scales which increase according to the value of the property. These payments are normally made by the Purchaser (but the government reserves the right to collect from both Vendor and Purchaser). As a rough guide you should allow 5% of the purchase price for these fees.
Does Goods and Service Tax (GST) apply?
In most cases the Federal Government’s GST does not apply to residential property but does apply to commercial property.
Scammell & Co.’s solicitors can advise you whether GST applies to your transfer. It is usually 10% of the purchase price.