Shellharbour Property and Conveyancing Lawyers

Property lawyers and conveyancers are not the same.

A property lawyer is a qualified lawyer who can provide both conveyancing services and address any other legal issues associated with property. For example, our property lawyers can provide you with commercial and contract law advice and assistance. In addition, property and conveyancing lawyers can identify other legal issues outside the area of property law as they arise in your matter and provide you with advice and assistance accordingly. Knowing that a property lawyer can assist you with handling complex legal issues can give you a level of confidence that cannot be provided by a conveyancer alone.

A conveyancer is only permitted to practice and assist people with conveyancing. Conveyancers are not qualified to provide clients with advice in relation to legal issues outside of conveyancing.

We do not use conveyancers at Brander Smith McKnight Shellharbour.

In NSW you are not required to have legal representation when selling a property. However, due to the legal nature of selling property and the large financial sums involved, it is very wise to have a lawyer assist you.

A lawyer provide sellers with invaluable legal advice in relation to issues that may arise during the sale of your property. In addition, a lawyer can draft an effective and legal contract of sale which includes the various documents necessary for the sale of different kinds of property. A lawyer can also assist you with negotiating with the buyer of your property and help resolve disputes between you and a buyer.

The process of conveyancing is complex, time consuming and can be very stressful for people without experience. The consequences of misunderstanding a contract or not performing the adequate checks and searches can be extremely costly to individuals who do their own conveyancing.

In addition, recent legislation in NSW means that all property transfers must now be lodged electronically via an Electronic Lodgment Network, such as PEXA. This requires involvement from a lawyer or conveyancer who is a registered subscriber. You can no longer do your own conveyancing because to transfer and register the certificate of title of the property with the NSW Land Registry, also known as Land Registry Services LRS, you must be a subscriber to one of the ELNOs (Electronic Lodgement Network Operators), most commonly PEXA. For more information on this 2021 amendment, please see our article on this subject.

Covenants impose certain obligations on landowners in relation to their land, they are either created by an agreement or by law.

For example, a covenant may impose an obligation on developers to comply with certain construction standards in relation to the land. This may include limiting the size of structures developed on the land or limiting the kind of materials that can be used in construction on the land. Covenants may also attach to property leases, for example, a lease may include a covenant to repair. A covenant to repair is a covenant which imposes an obligation on the tenant of a property to repair damages to the property leased to them.

A property lawyer can assist you in identifying whether any covenants exist in relation to a property. For more information, please see our article on covenants.

Easements are registered interests on land that grant specific rights to parties who do not own the land to use it for a particular purpose. A common example of an easement includes a situation where a landowner has the right to access their property thorough the use of a shared driveway. An easement may also exist where part of a person’s property is used commonly as a thoroughfare for pedestrians.

A property lawyer can assist you in identifying whether any easements exist in relation to a property. For more information, please see our article on easements.

You can transfer a property or a share in a property to a family member through what is referred to as a “related party transfer”.

In simple terms, a related party transfer is a means through which to transfer ownership or part ownership of a property to a related party. There are unique legal issues which must be considered in a related party transfer. A related party transfer may also not require a contract of sale, this is because in some instances a transfer document may be sufficient. Where a related party transfer can occur without the need of a contract of sale, parties can save both time and money.

It is important to note that you may also have to pay transfer duty on a related party transfer. However, there are circumstances where specific parties to a related party transfer may not need to pay a transfer duty. For further information, please see our article on transfer of property to relatives.

In 2021, NSW abolished physical title deeds, now known as certificates of title, through the Amending Act. As a result, land ownership and interests are now lodged and recorded entirely through electronic systems. Loan and property documents are still prepared as paper documents by lawyers. However, when a property purchase settles and the certificate of title is transferred, the lodgement to the NSW Land Registry is electronic and via PEXA. Electronic settlements mean that settlements are no longer performed in person. For further information, please see our article on buying residential property.

PEXA is an approved Electronic Lodgement Network Operator (ELNO). Lawyers and conveyancers use PEXA to lodge all property dealings, such as purchasing, selling or refinancing electronically. The Amendment Act of 2021 mandated that all property settlements are lodged electronically. To use PEXA, you must be a registered subscriber. BSM Shellharbour Lawyers is registered to use PEXA.

Brander Smith McKnight’s conveyancing lawyers provide a fixed fee professional conveyancing service. Our lawyers will provide you with clear and transparent descriptions of all costs.

Before buying a property, it is important to be aware of the various costs that may arise throughout the transactions, these costs include:

1. The purchase price of the property
2. Transfer duty
3. Title search fees
4. Lawyer fees
5. Fees associated with mortgage and loan documents
6. Registration fees
7. Insurance
8. Removalists
9. Property inspections

Settlement is the last step in the sale/purchase of property.

At settlement the ownership of the property is transferred to the buyer following their payment of the purchase price.
Settlement typically takes place 6 weeks following the exchange of contracts between parties. The date of settlement can be negotiated to a date that suits both parties, a conveyancing lawyer can assist you with these negotiations. Settlement can be a stressful time in a property transaction, having an experienced conveyancing lawyer take charge of all legal aspects and perform all of the requirements will help alleviate this stress. For further information, please see our article on selling residential property.

A property and conveyancing lawyer has the ability to read complex and difficult to understand legal contracts and explain what it means and your rights and obligations. They will also negotiate the amendment of terms if required. Having a lawyer review contracts in a property transaction provides a clearer understanding of the buyer and seller’s contractual obligations and legal complications.

In NSW, transfer duty is a tax that must be paid when you buy property. The amount of transfer duty that needs to be paid is dependent on the characteristics of the property purchased. Transfer duty must also be paid when you acquire property without buying it, such as where property is transferred as a gift. Transfer duty was once known as stamp duty.

A ‘simultaneous settlement’ refers to situations where the sale and purchase of property occur at the same time. A property and conveyancing lawyer can help you organise a simultaneous settlement.

There is no definitive description of how long conveyancing takes. In NSW, it typically takes 6 weeks for the process of conveyancing to be completed, however you can negotiate for the completion of conveyancing in a shorter time or longer period. A property and conveyancing lawyer can assist you when negotiating how long conveyancing will take, this negotiation should be done as early as possible.

In NSW, a cooling off period is a period of time that commences after a buyer enters into a contract for the sale of certain kinds of property. During the cooling off period the purchaser can decide to rescind their contract for the purchase of a property. The length of a cooling off period is set under law by default but a shorter or longer cooling off period can be negotiated in your contract for the sale of property.

Brander Smith McKnight Shellharbour property lawyers can assist you in resolving the dispute without going to court. Our expert conveyancing lawyers resolve the vast majority of property disputes without the need for expensive and time-consuming litigation. We have the expertise to achieve excellent results using alternative dispute resolution. For further extensive information, please see our page on property disputes.

There are various differences between selling property at auction versus doing so by private treaty, these differences should be considered carefully when selling a property.

When selling property by auction you will sell your property to the highest bidder and there is no cooling off period. There can also be no amendments to the contracts following the selling of a property at auction. When selling a property by private treaty a price is agreed upon by a seller and purchaser. Following the exchange of contracts there is a cooling of period and negotiations to the contract can be undertaken.

A conveyancing lawyer can assist you in further understanding the nuanced differences between selling a property at auction versus by selling a property by private treaty.

An ‘off-the-plan’ property is a property that is not built yet, these properties can be purchased.
When deciding whether to purchase an ‘off-the-plan’ property, prospective buyers should review the properties plans, schedules and perhaps visit developments that have been completed by the same developer.

You should seek legal advice and have your contracts reviewed when purchasing an ‘off-the-plan’ property so that its terms, conditions and obligations can be explained to you. It is important to recognise that ‘off-the-plan’ properties can take months or years to develop. Contracts for the sale of ‘off-the-plan’ property typically provide a specific date by which the development must be completed. For further information, please see our article on the benefits and risks of off-the-plan property purchases.

You can negotiate special terms and amendments to your contract for the sale of property following its signature during the cooling off period. A conveyancing lawyer can assist you in negotiating these special terms and amendments to your contract.

A Certificate of Title is a document that provides evidence of an interest in property. A Certificate of Title provides various details regarding property, including who owns the property, the boundaries of the property and any mortgage on the property. This is now in electronic form and registered with the NSW Land Registry, also known as the Land Registry Services, (LRS). The change from paper certificate of titles (which were originally known as title deeds) to the electronic form occurred as a result of an amendment to the legislation in 2021. For further information, please see our article on second mortgage loans.

In property law, an option is best understood as a right to buy or sell property at some point in the future. There are various kinds of option agreements that can be made in relation to property.

A call option is an agreement which affords a party the right to buy some specific property from a seller at some point in the future. A put option is an agreement which affords a party the right to compel a purchaser to buy a specific property at some point in the future. A put and call option is an agreement which affords both parties to the agreement the right to compel the sale or purchase of a specific property at some point in the future.