Buying residential property

8 October 2025 in Property and Conveyancing Law | 9 min read | skip to FAQs

This article discusses the process and legal requirements of buying residential property.

Do I need a Lawyer to Buy Residential Property?

You can buy a residential property without consulting a lawyer. However, it is in your best interests to use an experienced property and conveyancing lawyer. The purchase or sale of a property is a high value transaction that involves risk and can be stressful and confusing. An experienced lawyer will review contracts, negotiate with the vendor or purchaser, assist you in property disputes and provide advice regarding issues in other related areas of law.

Brander Smith McKnight uses lawyers for all property and conveyancing transactions, we do not use conveyancers.

The Process of Buying Residential Property

The process of conveyancing from exchange of contract to the completion of the sale, called the settlement, typically takes 6 weeks. However, this period can be shortened or extended. The process of buying residential property has four main stages.

Preparing for Purchase

If you require a loan to purchase residential property you should have a loan pre-approved. This approval is based on your assets, income and your ability to make repayments. Typically the bank will set an amount that they are willing to lend you. Once you have selected a property, your bank will assess that particular property and approve (or decline) the loan for that property. It is important to ensure that you have allowed for associated extra costs such as stamp duty. Ideally, you should have the property inspected for structural defects or pests for a house and obtain a strata report for an apartment. BSM Sydney Lawyers can organise these reports and scrutinise them for potential problems.

The contract for sale of the property is then reviewed. An experienced conveyancing and property lawyer will ensure that you understand all of the rights and obligations that arise under the contract. In addition, a lawyer will advise if there are any problematic terms in the contract and negotiate amendments according to your instructions. This mitigates the potential for future disputes.

Exchange of contracts

Prior to the exchange of contracts, both parties will come to an agreement regarding the terms of the contract and the purchase of the residential property. Once agreed on, the contracts are signed by both parties and exchanged. This can occur in a real estate office or through the respective lawyers. The contracts can be delivered via post, email or hand. Following the exchange of contracts, the deposit on the property will become payable. Typically, unless formally waived, there will be a cooling off period after the exchange of contracts. This is usually 5 business days. During this period the purchaser has the right to withdraw from the contract. If you purchase a residential property at auction, there will be no cooling off period and the contracts are exchanged and binding at the fall of the hammer.

Preparing for settlement

Prior to settlement a property lawyer will make various enquiries regarding the residential property. For example, determining whether the property is heritage listed, relevant council zoning or building approvals or whether there is existing money owing on the land. A property lawyer will ensure that approvals, funding and mortgage documentation is in order and prepared for settlement. The purchaser must pay the stamp duty on the property, which must be paid within three (3) months of settlement. However, where a mortgage is involved the mortgagee (bank) will require stamp duty to be paid on or prior to settlement. Prior to settlement you should make a final inspection of the property to confirm that there has been no damage or changes to the property.

Settlement

Settlement is the final step in the conveyancing process. This is the transfer of the property certificate of title and lodgement of this transfer in the NSW Land Registry Services. It also includes the respective registering and discharging of the buyer and seller mortgages over the property. All new mortgages now require the completion of a form called the National Mortgage which is found on the website of the Australian Registrars’ National Electronic Conveyancing Council (ARNECC). This form must be completed and signed by the mortgagee and mortgagor and witnessed by an eligible witness such as a lawyer. These forms are then lodged on the certificate of title with the NSW Land Registry. If there is no mortgage (incoming or outgoing), the transfer is done without the need for for a mortgage. There is simply a transfer and lodgement of the title from the the vendor to the purchaser in exchange for the payment from purchaser to vendor.

Changes to Registering of the Transfer of Property.

The New South Wales Parliament passed the Real Property Amendment (Certificates of Title) Act 2021 (NSW) (Amending Act). The 2021 Amending Act abolished paper title of deeds in NSW and mandated that all property dealings must be lodged electronically to the NSW Land Registry. This means the transfer and registration of the property title. It also includes any associated mortgage discharges or registration associated with the property. 

Schedule 1 of the Amending Act removed the need for a paper copy of the certificates of title and all related requirements from the relevant sections of the Real Property Act 1900 (NSW) (RPA). As a result of this, all existing paper title deeds were cancelled and the Registrar General has ceased to issue paper title deeds. There are still title deeds, which are now known as certificates of title. However, these are now in the electronic form.

Schedule 1 of the Amending Act mandates that all property dealings are lodged electronically (sections 3, 12 and 12E(1)(e) of the RPA). Property transfers are now conducted electronically via Electronic Lodgment Network Operators (ELNO). ELNO are approved companies who operate an Electronic Lodgment Network (ELN). The most widely used ELNO in Australia is PEXA.

The system of registering dealings, and the registration requirements for such dealings have changed. Section 56 of the RPA states that the Registrar-General may register a mortgage if the mortgagee (lender) has signed and certified that they hold a mortgage from the mortgagor (borrower) on the same terms as the one lodged for registration. This means separate identical copies of the mortgage document may be signed separately by each party. This is known as signing counterparts.

Significance of the Electronic Registering of Certificate of Title

Due to the 2021 change in legislation requiring electronic settlements, buyers and sellers need to see a lawyer or conveyancer who is a subscriber of an ELNO such as PEXA, for settlement. To lodge the transfer of title (and associated mortgage) to be registered on the NSW Land Registry requires access to PEXA. 

Brander Smith McKnight’s expert property and conveyancing lawyers can provide you with advice and assistance throughout the entire process of purchasing a residential property. We will ensure settlement is completed smoothly which includes ensuring the mortgagee is prepared, both the purchaser and vendor have completed all necessary steps, and all relevant documents are accurate. It is important to note that the actual property document and mortgage are prepared and usually retained as lengthy paper documents. The registered mortgage document to be registered via PEXA to the NSW Land Registry is a single piece of paper.

What can I do if the contract has been breached?

BSM’s expert conveyancing lawyers can help you where a party has breached a contract for the sale of property prior to or after settlement. We will advise you of your rights and in consultation with you develop a strategy for the resolution of the breach. This can include negotiation, alternate dispute resolution or litigation.

We resolve the vast majority of disputes without litigation saving our clients considerable amounts in legal fees. If litigation is necessary our lawyers are highly experienced court advocates with a panel of expert barristers available if required. We can either seek compensation for the breach or seek to have the contract performed.

Why use BSM Lawyers when Buying Residential Property?

1. We have highly experienced property and conveyancing lawyers who appreciate how important the purchase of your property is.
2. We will alleviate your stress by ensuring that the process is properly managed and runs smoothly ensuring that all of the detailed documentation is completed thoroughly and on time.
3. We are a subscriber to PEXA, which is one of the ELNOs essential for settlement.
4. We will keep you well informed and explain things in clear and simple terms.
5. We provide a competitively priced fixed fee.
6. All of the work is performed by lawyers, we do not use conveyancers.
7. Our lawyers have experience in all types of title, including torrens, strata and company.
8. Our property lawyers provide a free 20-minute consultation.

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BSM Lawyer Sydney has offices conveniently located in Sutherland, Parramatta, Wollongong, Shellharbour and Sydney CBD.