Many newcomers seeking to enter the Australian property market may well ask, “what exactly does a conveyancer do?” They may also wonder whether it’s better to engage a solicitor or a conveyancer to handle their home purchase or sale. Others may ponder whether they even need a conveyancer at all – or whether they can handle the sale/purchase process by themselves (which is not recommended).
Simply put, conveyancing is the formal transfer of a legal title of real property from one person to another. Real property, in this example, usually refers to commercial or residential real estate.
In this article, we consider the main tasks your conveyancer will perform to help you buy or sell residential property in Australia. If you are conducting a straightforward house or land sale (or purchase) a conveyancer is a more logical choice than a property lawyer. Property lawyers are better suited to transactions where there are complex underlying estate planning issues (around wills and asset distribution) or during a divorce where marital assets are divided among parties.
However these days you will also find highly specialised conveyancing legal firms who offer competitive rates (similar to licensed conveyancers). Such firms, as accredited legal practitioners, also have the skills to handle more sophisticated real estate transactions including those with complex estate planning elements. Fortunately, Bush to Beach Legal are property lawyers on the Sunshine Coast who specialise in Conveyancing and Wills & Estate planning for all of your legal needs.
What’s the difference between a conveyancer and a solicitor?
A conveyancer is a licensed professional who’s legally accredited to act on your behalf to manage the sale or purchase of residential or commercial land or property. A skilled Queensland conveyancer can also give you specific legal advice about the transfer of title.
Alternatively, you can hire a property lawyer to manage your sale or purchase transactions. A Queensland property lawyer is better suited to clients where there might be complex estate planning requirements or for couples going through a divorce involving property disputes.
Your skilled conveyancer should be able to tell you about banking requirements (like the preparation of deposit and settlement cheques by the mortgagee) under Queensland (and Federal) law as well as your stamp duty obligations and due dates. They will prepare all the relevant transfer and state revenue office paperwork and make sure you meet all the necessary deadlines.
A good conveyancing firm should be able to give you a snapshot of the state of your local property market across both regional and urban Queensland. Many Sunshine Coast conveyancers have detailed industry knowledge about real estate values in your local area – including good places to buy blocks of land (down to the suburb and even street values).
Conveyancers’ fees may also be a bit lower than those of a solicitor as law firms have much higher fixed costs around maintaining their insurance and administrative staff than conveyancing firms which may be leaner, one-to-two person operations.
Regardless of which professional you decide to engage – your choice must be based upon the likely complexity and other players involved in your real estate deal. If you just want to buy a new home or sell an old one and there are no underlying estate planning or disputes around the sale or purchase proceeds, then a local conveyancer will always be the better choice.
Most local conveyancing firms in Queensland have an excellent understanding of the state of play around local markets – including house prices, location and availability, industry knowledge, stamp duty, and necessary completion requirements. They may also be able to advise you about mortgage financing options and ways to structure your home loan to keep your costs as low as possible.
Want to know more about the Conveyancing process in Australia?
In most cases, conveyancing is conducted by either a solicitor or licensed conveyancing professional. However, it is possible to do your own conveyancing (which is not recommended).
Most people however are not confident enough to take on the complexity of a real estate deal without the advice and oversight of a trained professional. This is where it’s important to find the best conveyancing firm or legal professional to guide you through this delicate (and expensive) process.
The conveyancing process involves two broad steps: exchange of contracts and final settlement (where the keys are handed over) which usually runs between 4 and 6 weeks. There are a number of actions taken in between, by your conveyancing professional, and these will include conducting property searches on your behalf, ordering bank cheques and finalising the legal paperwork to complete the land transfer.
Property searches done by conveyancers are usually around building and pest inspections to check that the home is built safely and there are no termites or similar pest infestations. Your conveyancer will look over the land plans to see if there are no easements (or restrictions) – including things like drainage issues – likely to be an issue on your property after you move in.
Most of the work your conveyancer will do will be around completing these searches comprehensively. Australia’s federal system means that your conveyancer might be conducting property searches across three jurisdictions: federal, state and local. Searches can include the following:
- A registered plan search or strata title search (if apartments)
- Company search (if the vendor or purchaser is a corporate legal entity)
- Environmental searches (around environmental impacts and/or contaminated lands)
- Local council property search
- A full local council inspection of records
- Land tax implications
- Main roads
Your conveyancing firm will take care of all the searches as well as doing the following things on your behalf for your sale or purchase:
- Check whether there are any restrictions (or encumbrances) on the land (see also searches)
- Review and discuss with you all special conditions in the contract and make sure you meet them
- Make sure that any council rates, land tax and water consumption charges are adjusted accordingly between exchange and settlement equitably.
- Ensure that your government fees and charges including stamp duty are paid on settlement (to avoid penalty).
- Prepare the final legal documents (Contract of Sale or land transfer document).
- Talk to your mortgage-provider to get payout figures for bank cheques needed on settlement day.
- Liaise with the other party’s legal representatives/conveyancing firm to arrange and attend final settlement.
Because a house or land purchase is such a big decision for most people, some states include a cooling-off period for sale and purchase contracts. Presently, only Queensland and New South Wales have a five-day “cooling off” period for residential property purchases. Other states such as Victoria and South Australia also have cooling-off periods which are slightly shorter, at only two days.
A “cooling off” period means that a prospective buyer can change their mind and withdraw their offer as long as they do this within the specific period. In Queensland, this is five business days. Another benefit of having cooling-off periods is the purchaser is given time to do any additional or necessary due diligence research about the property – including pest and building inspections.
However, properties purchased at auction in Queensland do not have cooling-off periods. So once you have paid your deposit at auction, you are locked into the contract that you just signed. If you have a change of mind after bidding at an auction, you will lose all your deposit. So it’s really important when bidding at any Queensland auctions that you have briefed and selected the best possible Sunshine Coast property lawyer/conveyancer with specific relevant information about the property you are interested in, well in advance.
Conveyancing – it’s all about perspective
Real estate in the 21st century has unsurprisingly been going digital since 2012 when all Australian states introduced the Electronic Conveyancing National Law in 2012. All Australian states are presently transitioning to digital e-conveyancing however the underlying principles remain the same as when the system was purely paper-based. Your conveyancing experts will be able to walk you through the entire conveyancing process regardless.
What does a Conveyancer Do? – the Buyer’s Experience
If you are a buyer, your conveyancer to do the following tasks on your behalf:
- Pre-settlement processes including reviewing, preparing and lodging the Contract of Sale or Land Transfer instrument.
- Conduct full property title searches.
- Advise you about outcomes of the searches and terms of your legal contract.
- Hold your deposit in their trust account and disburse the funds on settlement.
- Deal with the seller (the vendor) or their agents.
- Communicate with your bank or financial institution providing payment direction on settlement.
What does a Conveyancer Do? – the Seller’s Experience
If you are a seller, your conveyancer will perform the following tasks on your behalf:
- Prepare all the legal contracts.
- Manage and coordinate with your bank or financial institution the discharge of mortgage (if applicable).
- Transfer the release of the deposit funds to you.
- Make sure that the title is free to be transferred to the buyer.
- Manage deadlines (for searches and payments of monies) with the other party.
- Assist in completion of the settlement process.
Both buyers and sellers need to feel confident that their conveyancing team is across all of these processes. Your conveyancer or Queensland property lawyer should have a good feel for not only the real estate landscape but also government policy changes affecting demand for real estate in your desired location.
Conveyancing – The Policy Landscape
In Australia, both major political parties have been discussing Australia’s “housing crisis” in relation to housing affordability and demand. There’s also been concern about whether rising interest rates and general inflation could destabilise housing markets across the country.
Demographic changes following two years of pandemic policies have also seen many city dwellers move to regional areas – pushing up regional property prices. Many Australians are relocating to beautiful parts of Queensland where there’s lots of desirable real estate in beautiful natural locations like the Sunshine Coast, Caloundra, Nambour, Noosa and Maroochydore.
Outgoing Liberal Party Prime Minister, Scott Morrison recently proposed allowing Australians the chance to access $50,000 of their superannuation fund to put towards a first-home buyers deposit. Incoming Labor Prime Minister Anthony Albanese has also floated the idea of a shared-equity scheme where eligible first-home buyers could agree to share up to 40 percent of their home purchase price with the government. These stimulus policies are intended to make it easier for younger Australians to enter the property market.
However, some economists such as Tim Lawless, Research Director at CoreLogic have warned against these types of home-ownership government stimulus policies. Lawless expressed concerns that the incoming Labor Government’s proposed “Help to Buy” scheme could become rapidly oversubscribed with people desperate to enter the property market. He also felt that this scheme could commit Australians to debt that they were unable to service particularly if property values were to fall because of inflationary pressures:
“With the housing market probably heading into a downturn over the coming year, or years, some buyers may find their home is worth less than the debt held against it.” [Source: ABC News article – 24 May 2022]
Government stimulus policies, which may appeal to first home buyers, in the first instance, may have unintended inflationary consequences on the national real estate market. Rising interest rates in Australia (and internationally) have the potential to significantly change Australian housing affordability which could, in effect, price many ordinary Australians out of the market.
This is where having the benefit of the best legal team in your local area with both industry and local real estate knowledge can help you make the right choice about not only the location of your block of land but also around the best time to enter the Queensland property market. They may also be able to direct you to the most sensible sources of real estate financing which best fits your existing circumstances.
Conveyancing in a Nutshell
The process of conveyancing is usually quite straightforward. It’s really important that you understand all of your legal obligations between exchange (while you are under contract) and on settlement day to make your real estate transaction as seamless as possible.
A real estate investment is one of the biggest decisions in your life with long-lasting repercussions so it’s not only important to find the best conveyancing team to guide you but also have a personal understanding of the current policy landscape and your local real estate market. Finding the right legal professionals with lots of local knowledge is the key to your success.
Here at Bush to Beach Legal, we offer a fixed fee conveyancing service, assisting clients who are buying and selling residential and commercial property. Our experienced property lawyers understand the importance of quality advice during the conveyancing process and communicate with our clients at each and every stage of the buying or selling journey to ensure that the process is as stress free as possible.
Contact us today or learn more about how we can help as your Sunshine Coast conveyancing lawyers.