Before we go ahead with explaining all about the process of conveyancing in Melbourne, let us first talk about conveyancing itself.
Conveyancing refers to the sale of property or real estate from a vendor to a purchaser, it can also refer to the process whereby a mortgagor (Bank or Financial Institution) provides a mortgage to a mortgagee. The completion of the conveyancing process can take anywhere from 30 days to much longer depending on the type of sale eg. such as Off the Plan sales which can take over a year to finalize due to the nature of building.
HOW THE CONVEYANCING PROCESS WORKS IN VICTORIA
There are two sides to conveyancing, depending on whether you want to buy or sell a property. For buyers the conveyancer or property lawyer has the role of doing the following:
- They examine and revew the contract of sale and communicate the key terms to the client
- They watch over the timeline and keep up to date with deadlines
- They communicate with your bank to make sure your loan and funds meet the requirements for settlement
- The Conveyancer will calculate and inform you of the amount of Stamp Duty and Lodging fees you will need to complete the Transfer of Land
- They facilitate the settlement process whether it be online or in a face to face settlement room
For Vendors the conveyancer will do the following:
- Make sure that the vendors conform to the contract terms and conditions
- Keep track of deadlines and inform the client as to the progress
- Calculate the payment of any remaining owing mortgages on the property
- Prepare settlement statements
- Inform the relevant authorities such as water companies, council, State Revenue Office etc. of your sale
STEP 1: THE CONTRACT OF SALE
The contract of sale is the legal document outlining the terms and conditions that both parties will agree to in the transaction. This is one of the most important legal documents involved in the conveyancing process, which if not prepared properly can give rise to a dispute between the vendors and purchasers. Generally the contract of sale must contain specified documents, certificates, and disclosures detailing the property and any special conditions involved.
STEP 2: THE OFFER
The second step is making an offer to the property owner to purchase it. The vendor can accept the offer or they can enter into negotiations with the buyer over the price and conditions of the sale.
STEP 3: MAKING A DEPOSIT
Once negotiations are in place the purchaser can choose to pay an initial deposit to show that they are committed to the purchase of the property. This amount may vary and will be stated by the seller or conveyancer and is simply a step to show that the seller is serious about their offer as well. It is not a binding contract and neither is the property removed from the market.
STEP 4: EVALUATION OF ANY RISKS OR DAMAGE TO THE PROPERTY
It is the vendor’s responsibility to check for damage to the property up until settlement or completion of the sale. The purchaser can be prudent by insuring the property from exchange of contracts if they are unsure whether the vendor has a current insurance policy.
STEP 5: EXCHANGE OF CONTRACT
In Victoria, the vendor and purchaser each sign one copy of the contract and then the real estate agent acts as the middleman who exchanges these copies between both parties. The exchange of contract signifies the process is underway and both parties are bound legally by the terms contained within it.
STEP 6: COOLING OFF PERIOD
After the exchange of the contract and a deposit is paid, the purchaser may have a cooling off period. If a cooling off period applies, the buyer can revoke the contract before the end of the cooling off period however at auctions, the cooling off period does not apply.
STEP 7: THE TRANSFER OF PROPERTY
Since 2018 the conveyancing process in Victoria is done almost entirely online using the PEXA property exchange platform. The purchasers conveyancer will prepare a work space and invite all the relevant parties to join to begin the Econveyancing settlement process. If there is a special case and a paper transaction is required the purchaser’s conveyancer must prepare a transfer document and have the purchaser sign it. The purchaser’s conveyancer must then send the transfer document to the vendor’s conveyancer for the vendor to sign. This is often a requirement of the purchaser’s financier, so that it can register the transfer and its mortgage promptly. This means that the purchaser must arrange to provide their conveyancer with the stamp duty amount prior to settlement, or arrange for stamp duty to be paid at settlement. It is not possible to defer the payment of stamp duty on the transfer. Any other documents required must be signed and ready for settlement. There are only a few instances now where a paper settlement is required, check with your Lawyer or conveyancer to find out.
STEP 8: AGREEING ON THE SETTLEMENT DATE
The time for settlement can be set by agreement between the parties. If purchases have bought “off the plan” it can be quite lengthy, up to years in fact. The reason for this is that the contract can only be completed after the building construction is complete and new titles are issued. These periods can be changed by agreement between the seller and the buyer.
STEP 9: OUTGOING MORTGAGEE
If the vendor has a mortgage over the property, the mortgagee must be contacted to provide a payout figure and attend at settlement to hand over a discharge of mortgage and often the certificate of title/title deed. In Victoria the process is done online through PEXA unless it is deemed a paper settlement under special circumstances.
STEP 10: ADJUSTMENTS
At settlement, adjustments like council rates, water rates, strata body corporate contributions, land tax, and rent will be calculated and the funds available figure (amount provided by the purchaser or their bank) will be used to pay the parties involved at settlement.
STEP 11: PRE- SETTLEMENT
The sale is said to settle or complete on the day the purchaser pays the balance of purchase money to the vendor. On the day of settlement it is important for the conveyancer to obtain a final search of the title to ensure that the property is clear from any interest or restrictions that may have been recorded between the date of exchange and settlement. This is a legal requirement under the conveyancing act, if settlement occurs and there turns out to be a caveat or warrant on the title this can stop the transfer of land being registered and legal proceedings will most likely be the result.
STEP 12: POST- SETTLEMENT
If it is an online settlement, money will be transferred through an EFT facility on PEXA and the vendor will receive the funds within minutes of settlement completing. If it is a paper transaction the purchaser or the purchaser’s mortgagee will pay Stamp Duty and then register the transfer documents with the Land Titles Office. Moneys are exchanged via cheques handed over at settlement in a physical location. The transfer documents consist of any of the following:
- discharge of mortgage
- withdrawal of any existing notice or caveats
- Transfer of title from the vendor to the purchaser
- mortgage from the purchaser to the new mortgagee. The Land Titles Offices advise the relevant authorities like the local council, water authority, and Valuer General’s office that the property has a new owner.
Whether you plan to buy or sell a house or business, a conveyancer or property lawyer’s role role is to represent your interests throughout all the stages. When representing a buyer, a conveyancers work is to prepare and lodge all legal documents relevant to the transaction. A buyers conveyancer will also deal with the financial areas, including the placing of any deposit into a trust account, and undertake any adjustment calculations involving both taxes and rates.
When representing the person or entity selling a property, a conveyancer will review and complete all necessary legal documents and respond to any questions about the title, and deal with key matters the vendors have.
Conveyancing keeps you, a buyer or a seller, away from all complications of the buying and selling process. Hence, it’s always advised to contact a well respected and experienced conveyancer or property lawyer.