If you choose elringtons as your conveyancing lawyers for the purchase of your house in NSW, we will safely guide you through the formalities of this legal process. This article is a general guide to help you understand the conveyancing process.
If there is an Agent involved, often the first communication elringtons will receive is the Sales Instructions from the Real Estate Agent. Sales Instructions is a document prepared by the Agent after ‘offer and acceptance’ between a Buyer and Seller has been reached. It contains details of the Buyer and Seller, their respective lawyers, the purchase price, property details, settlement time frame and any special conditions.
The Contract for Sale is prepared by the Seller’s solicitor using information contained in the Sales Instructions. When elringtons are instructed to represent you in the purchase, we will request the initial sum of $500.00 from you, which will be deposited into our trust account. From this sum we will pay disbursements (out-of-pocket expenses) for property searches and enquiries. The $500.00 also covers part of our professional fees.
Building & Pest Inspections:
These are not mandatory documents in NSW Contracts for Sale, however we recommend that you have these inspections carried out by a licensed Building & Pest Consultant. The inspections will detail a review of the:
- building structure
- interior and exterior, including fences and trees that might promote termites, borers or fungal decay due to poor ventilation or damp conditions
- location of asbestos materials
The Agent will coordinate access to the premises for these inspections. The costs for these reports will be borne by you as the Buyer and are not recoupable from the Seller.
Contract for Sale:
The Seller’s lawyer prepares the Contract for Sale and forwards the document to us. The Contract is prepared in duplicate, with one copy provided to us for your review and signature, and the other copy retained by the Seller’s lawyer for the Seller’s review and signature. It may take up to a week for us to receive the Contract from the Seller’s lawyer.
Building File Inspection:
This is an inspection of the Council’s building file for the property and it is undertaken at the office of the relevant Council. We strongly recommend that an inspection of Council’s building file be carried out prior to exchange of Contracts. We can carry out the inspection on your behalf for an additional fee. The purpose of the inspection is to ascertain whether:
- the dwelling and any improvements or extensions have been approved in accordance with building regulations
- a Survey Certificate is held on the file
- any notices have been issued by Council for work to be carried out to the property.
Due to copyright law, we are unable to obtain copies of plans or documents held on the building file. We are able to inspect the file and make detailed notes of all relevant information, which we then pass onto you.
To avoid delays with exchange, we suggest that the Building File inspection to be carried out prior to your first appointment with us.
Most Councils do not charge for this service.
When we receive the Contract for Sale, we will contact you to arrange an appointment to:
- Discuss the results of the Building File inspection
- Review the Contract for Sale
- Discuss your finance arrangements (if applicable)
- Discuss your entitlements as a first home owner (if applicable)
- Generally discuss and explain the conveyancing procedure, time frames etc
- Sign the Contract
- Advise of the stamp duty amount payable, and when it must be paid by, and any available concessions
- If not previously paid, obtain from you a cheque for $500.00 for disbursements/out of pocket expenses for searches and enquiries
- Obtain from you a cheque for the deposit
Following your appointment, we will communicate with the Seller’s lawyer in relation to any changes you require to the Contract.
Exchange of Contracts and payment of deposit:
Exchange of Contracts takes place when both parties are satisfied with the terms of the Contract, when both parties have signed their respective copy of the Contract, and when your finance (if applicable) has been approved in writing.
We recommend that you arrange a pre-exchange inspection the property with the Agent to check the working order of appliances (stove, oven, cook-top, air-conditioning, heating etc). Any problems should be communicated to us immediately following the inspection, and before the exchange is carried out.
You will then provide a cheque for the agreed deposit (usually payable to the Real Estate Agent’s Trust Account) and that cheque is handed to the Seller’s lawyer on exchange. They forward the cheque to the Agent following exchange. The deposit is held in the Agent’s Trust Account until settlement has occurred. If there is no Agent, the deposit will be held in the Seller’s lawyer’s Trust Account. This money cannot be released to either the Seller or the Buyer without agreement from both parties.
During the exchange process, both Contracts (one signed by the Buyer, the other signed by the Seller) are checked to ensure that their contents are identical. The documents are then dated and physically exchanged (swapped). We receive the Contract signed by the Seller and the Seller’s lawyer receives the Contract signed by you. Once Contracts are exchanged, they are binding and both parties are locked into the transaction.
On exchange, we will provide a Section 66W Certificate signed by you to the Seller’s lawyer, which waives your right to any ‘cooling off’ period. After exchange, we will apply for the relevant searches and enquiries such as rates amounts and money owing to the NSW Office of State Revenue.
Technically, insurance liability for the dwelling remains with the Seller until settlement, however we recommend that you take out your own insurance once exchange has occurred. The body corporate of a unit will have insurance in place regarding the structure, your insurance will need to cover everything else.
Stamp duty in NSW is calculated based on the purchase price of the property. We will advise you of the amount of stamp duty payable when you attend your first appointment with us. We will also advise when the stamp duty is to be paid (must be paid prior to settlement and within three months from exchange). Hefty penalties are imposed by Office of State Revenue for late payments of stamp duty, therefore it is important that stamp duty is paid on time.
Stamp duty payments must be by BANK CHEQUE payable to the Office of State Revenue. At the appropriate time, we will ask you to deliver the bank cheque for the stamp duty to our office and we arrange payment of the duty on your behalf.
As the settlement date draws near, we will communicate with the Seller’s lawyer and obtain settlement figures and details of the cheques they require on settlement.
We will prepare and provide you with a detailed Settlement Statement setting out adjustments for rates, deposit paid, allowances for registration fees, legal fees etc.
Settlements take place in Canberra between 2.30pm-4.00pm Monday to Thursday, and 1.00pm-4.00pm on Friday.
The location for settlements occurring in NSW is at the discretion of the Seller and often dependent on the location of Seller’s discharging mortgagee and/or the Seller’s lawyer. This information will be communicated to us by the Seller’s lawyer following exchange and prior to the settlement date.
Once we have this information we will let you know as it is likely that pre-settlement arrangements may need to be expedited if documents and funds need to be forwarded outside the Canberra region for settlement. Settlements occurring outside the Canberra region require the appointment of a settlement agent to attend settlement on our behalf. This may incur a fee in addition to our legal fees.
Mortgage (if applicable):
We will write to your Mortgagee after exchange, provide the details they need to prepare mortgage documents and notify them of the date for settlement.
You should expect to hear from your mortgagee shortly after exchange as they will need to arrange for you to sign the mortgage paperwork in time for settlement. You should let us know if you have any concerns, or if you do not hear from your mortgagee after exchange.
In the weeks leading up to settlement, we will contact your Mortgagee to ‘book in’ settlement. A day or two prior to settlement, the Mortgagee will provide us with the exact amount of money available for settlement. Once we receive that figure, we will finalise details of the settlement cheques and let you know if you will be required to provide us with additional cheques for settlement.
Please note that any additional cheques provided by you for settlement must be BANK CHEQUES and these will need to be delivered to our office no later than 12:00 midday on the day of settlement if the settlement is in the Canberra region, or earlier if the settlement is to occur elsewhere.
You should book a pre-settlement inspection of the house with the Agent either the day before settlement or on the morning of settlement. When the Seller vacates the property, it should be left in a clean and tidy state and in the same state as at the time of the exchange.
During the inspection, you should check that the inclusions documented in the Contract (carpets, curtains, light fittings etc) remain, that appliances are in working order and that the property is in a clean and tidy condition.
If the pre-settlement inspection is unsatisfactory, you should notify us immediately so we can try to resolve any problems prior to settlement. You have the right to delay settlement if resolution cannot be achieved in time.
We emphasise the importance of a pre-settlement inspection as your right to object to the condition of the dwelling, the removal by the Seller of any inclusions, or the working order of appliances etc expires once settlement has occurred.
Keys will be available to you after settlement. You can usually collect keys from the Agent or from our office. We will notify you before settlement of the location of keys so you can arrange to collect them after settlement.
We will phone you when the settlement has taken place.
Following settlement, we will write to you to confirm that the purchase is complete and we will provide you with a detailed Settlement Statement, our Tax Invoice, the original Contract and any other relevant documentation.
Electricity, gas and telephone connections:
The cancellation of these services is the Seller’s responsibility. Reconnection is your responsibility.
Rates and Water:
The NSW Land Titles Office will notify the local council of the change in ownership of the property following registration of the Transfer into your name. Once this occurs, rates notices will issue directly to you as the new owner.
If you have purchased the property subject to existing tenancy, letters will be sent after settlement to the tenant and the Managing Agent advising of the change in ownership and providing your contact details. Please contact the Managing Agent yourself in relation to ongoing management of the property, or otherwise.