Conveyancing Advice Service (for Purchasers)

There is much more to conveyancing at Graham Legal.

Far too many parties (both Vendors and Purchasers) enter into conveyancing contracts with very little knowledge and understanding of the terms and conditions that will be binding upon them.

Parties see that Contracts contain pages and pages of printed terms and conditions and often they simply do not read them. Parties believe that these terms and conditions are "standard". We find that many parties even complete a conveyancing transaction without knowing their rights and obligations. This is fine, providing that there are no unexpected twists or turns. If problems occur, a lawyer's assistance is often required.

Problems are always best resolved by avoiding them in the first place. At Graham Legal we recommend that our clients engage us as soon as they decide to buy. Alternatively, our clients should seek our advice when they have received a Contract of Sale and Vendor's Statement for a particular property but have not yet signed the documents. As a last resort, for those clients who have already signed the contract documents, our clients should seek our advice well before the expiration of any cooling-off period. Otherwise, the contract will be binding.

The Graham Legal Conveyancing Advice Service (for Purchasers) includes a face-to-face question and answer meeting of up to 30 minutes and a comprehensive letter of legal advice. The Service equips our clients with all that they need to know in the pre-purchase period.

Our comprehensive letter of advice deals with the following subjects (in so far as they are relevant to the client's particular circumstances):

  • Ending the Contract by withdrawing an offer to purchase or exercising a cooling-off entitlement;
  • The order of relevance between the information set out in the Contract under the respective headings of Particulars of Sale, General Conditions and Special Conditions and what to do if there is an inconsistency between the information provided in those respective parts;
  • What part of the contract documentation is required to be signed by the Vendor before the Purchaser signs;
  • Commentary and advice concerning any Special Conditions in the Contract that are, in our experience, uncommon, likely to cause unusual or unfair consequences in particular circumstances or commonly misunderstood;
  • Advice as how long should be allowed between the signing of the Contract and Settlement;
  • In the case of off-the-plan Contracts, advice as to:
    • What does registration of a Plan of Subdivision really mean;
    • How long should be allowed between registration of the Plan of Subdivision and Settlement;
    • What rights does the Vendor have to extend the "sunset clause" for registration of the Plan of Subdivision and Settlement;
    • hat rights does the Vendor have to vary the location of or to include an easement on the land being purchased and to change the fixtures and fittings in any dwelling or building to be constructed;
    • The Vendor's obligation to provide details of those works affecting the natural surface level of the land in the lot you are buying (or any land abutting the lot you are buying);
    • The Vendor's obligation to provide engineering plans to indicate whether or not the land being purchased is affected by land fill;
    • If a home is to be constructed before Settlement occurs, what to look for in the Plans and Specifications;
    • The difference between Plans required to obtain a Planning Permit and Plans required to obtain a Building Permit;
    • What to do to avoid a situation where the Plans prescribe a particular building method or material that differs from that prescribed in the Specifications;
    • If the proposed residential development is to include underground car parking (and/or storage cages) it can be particularly worthwhile to ensure that adequate space is being provided;
    • Whether or not a Vendor is required, in the case of a recently constructed home, to provide Builder's Warranty Insurance as a precaution against a defective workmanship claim;
    • Understanding how your Contract determines when the home is completed in the context of when Settlement is to occur;
    • Your obligations if your Contract is subject to finance;
    • Your liability for penalty interest (and the rate at which it will be charged) should you or your lender not pay the deposit or balance of price on the due date;
    • Your liability for forfeiture of 10% of the purchase price (and other penalties) if you are unable to complete the purchase;
    • Your obligations if you purchase in your name "and/or nominee";
    • How to avoid additional duty obligations if you purchase with another person and you are intending to purchase in unequal shares;
    • Your rights in the event that the home or building (or any part thereof) was constructed by an Owner Builder;
    • Your obligation (if any) to pay GST in addition to the Price;
    • The relevance of the Vendor's Statement (Section 32) and what you should be looking for, including;
      • The relevance of applicable planning or zoning schemes;
      • Who pays current municipal rates (and who pays any arrears);
      • Unregistered encumbrances that may be disclosed by a Water and Sewerage Information Certificate;
      • A purchaser's liability under the Land Tax Act 2005 (which imposes an annual tax on the unimproved value of all land owned by a landowner in Victoria where that land value, excluding exempt land, has a total taxable value above the threshold);
      • Whether VicRoads has approved proposals that will affect the property being purchased;
      • Whether the property being purchased will be affected by one or more Owners Corporations and, if so:
        • What fees and levies will be payable to the Owners Corporation Manager?
        • How will current fees be adjusted at settlement between the vendor and purchaser?
        • Who is responsible for special fees or levies that are due for payment after the settlement date?
        • Who is responsible for arrears of fees and levies?
        • What are Owners Corporation Rules and how do they affect a purchaser?
        • What responsibility does a purchaser have to contribute to the Owners Corporation's costs to repair and maintain the common property and the chattels, fixtures, fittings and services related to the common property or its enjoyment;
        • It is important that purchasers have a clear understanding as to where the boundaries of their units are and what constitutes the common property;
        • How are a purchaser's voting rights at meetings of the Owners Corporation determined;
        • What proportion of the administrative and general expenses of the Owners Corporation is a purchaser obliged to pay?
        • Who is entitled to any accumulated balance in a bank account in the name of the Owners Corporation? Is the outgoing vendor entitled at settlement to a refund of any unused funds in the Owners Corporation account?
        • What is a purchaser's liability for costs arising out of any existing and latent liability that will result in future expenditure by the Owners Corporation?
      • Whether there have been any building works carried out upon the land and whether those works were completed within a period within which a purchaser may take action for recovery of damages associated with the rectification of defective building works and, if so, what are the implications if those works were carried out by:
        • A registered builder;
        • A registered builder who is dead, insolvent or who has disappeared;
        • An owner builder; or
        • An owner builder who is dead, insolvent or who has disappeared.
      • In what circumstances may a purchaser claim compensation from a warranty insurer for defective building works;
      • Is the property listed on the Heritage Victoria or Contaminated Sites Register and, if so, what are the consequences?
      • Is the property situated in a designated bushfire prone area?
    • Is the property being sold with vacant possession or subject to the rights of a tenant in possession? If a subsisting tenancy does exist:
      • What are the essential terms of that lease?
      • What are the purchaser's rights if the tenant commits a breach of the lease and/or vacates the property in the period prior to or following settlement?
    • What Victorian Government duties and fees are payable by a purchaser in connection with the purchase of real estate?
      • If a purchaser is a first home buyer of a residence that will be a principal place of residence what exemptions or duty concessions can be claimed?
      • If a purchaser is buying off-the-plan what duty savings can be claimed?
      • Where buyers are intending to acquire real estate in more than one name, particular care must be taken to identify the proportions of ownership that each buyer is to acquire. The State Revenue Office assumes that in any Contract of Sale where there are two or more purchasers, unless the contract indicates otherwise, the parties are taken to have purchased the property in equal shares. However, co-purchasers who, after taking the advice of their accountants or for asset protection purposes, later resolve to become registered as owners in unequal shares may be subject to double duty.
    • The First Home Owner's Grant provides eligible first home buyers with a $10,000.00 grant ($20,000.00 for homes in regional Victoria). This grant is not means-tested but is only payable where the price of the property or construction of the home does not exceed $750,000.00.
    • Home buyers who are purchasing a new or established home may, if they intend to live in the property as their principal place of residence for a continuous period of 12 months commencing within 12 months of the settlement date, apply for the principal place of residence duty concession.
    • Home buyers who are purchasing a new or existing home may, if they hold a relevant concession card as at the settlement date, be eligible to apply for exemption, full or partial, from the payment of Victorian Government Duty.
    • It is not uncommon to find that the property as fenced is either of greater or lesser area than the property area as disclosed in the plan of land attached to the Certificate of Title. In other cases the title area may be identical to the fenced area and yet the fences are in the wrong position. In such cases:
      • What if there are discrepancies and they are immaterial or insignificant?
      • What if there are discrepancies and they are found to be substantial?
      • What if there are discrepancies and those discrepancies have existed for a continuous period of 15 years or longer?
      • What risks does a purchaser take in buying a property where discrepancies exist?
      • What rights and liabilities does a purchaser have or face in such circumstances?
    • Is the property being purchased affected by a "stratum title" and, if so, what does that mean?
    • Does the title to the property being purchased also convey rights over adjoining property?
      • What are the rights and obligations of a "right of way" over adjoining property?
      • What are the rights and obligations associated with a right of drainage and/or sewerage over adjoining property?
      • What are the rights and obligations associated with a party wall easement?
    • Is the title to the property being purchased affected by covenants and restrictions? If so, what are the implications for the purchaser?
    • Is the title to the property being purchased affected by an Agreement made under Section 173 of the Planning & Environment Act? If so, what are the implications for the purchaser?
    • Is the title to the property being purchased affected by easements? If so, what are the implications for the purchaser?
    • What is caveat emptor and:
      • Why are purchasers advised to engage a building consultant to inspect the property and give a written report on its condition?
      • Why are purchasers advised to arrange a pre-purchase inspection to be carried out by a competent pest management company?
    • What is the difference between fixtures, fittings and chattels? Which of these descriptions applies to items that automatically pass to the purchaser with the property being sold and which don't?
    • In the period between the day of purchase and the day of settlement what is the vendor's responsibility to maintain the condition of the property, including all chattels passing with the property, so that it may be handed over in the same condition as it was at the purchase date?
    • Unless all purchasers of residential real estate are Australian Citizens, permanent residents, approved migrants or foreign nationals having an entitlement to take up or retain permanent residence in Australia (such as New Zealand citizens), there are heavy penalties payable by foreigners who purchase real estate without prior approval to purchase having been obtained from the Foreign Investment Review Board in Canberra.

    In Conclusion:

    As we said at the start, there is much more to conveyancing at Graham Legal.

    Our Conveyancing Advice Service (for Purchasers) is comprehensive. Not all of the matters listed above will be included in each letter of advice. Each letter is carefully directed to address the issues that are relevant to the circumstances of the client and the particular property being purchased.

    A typical Contract of Sale binds a purchaser to the most expensive financial transaction of their lifetime. Graham Legal clients enjoy the advantage of an exceptional level of pre-purchase legal advice before they become bound to what otherwise could be the most expensive financial mistake ever made.