There are so many questions when you are buying or selling a property, we have gathered together some of the frequent questions our clients ask below – however, If you can’t find the answer you are looking for please drop us an email or pick up the phone – We love to help clients with any questions they may have.
FAQ’s - Frequently Asked Questions
Headed up by a husband and wife team, Aaron and Meg were not happy with the service they received from other conveyancers when buying, selling and developing their own projects, and decided to set up their own firm.
Why MAP? Because we want to help move you on to the Property Map (cheesy, but true).
Map Lawyers specialise in residential conveyancing in Brisbane, the Gold Coast and the Sunshine Coast. Our aim is to provide a professional and affordable conveyancing service which exceeds all expectations. We understand when buying or selling a house that it is an exciting and anxious time – let us take the stress out of that process.
Conveyancing is the term used to transfer the ownership of a property from one person to another. Sounds simple right? Well there is actually quite a bit to it and if it is not done right, there can be dire consequences.
While do-it-yourself conveyancing kits are available, they generally provide guidance material only. If things don’t go to plan, you will be personally liable, and it is likely you will have to engage a lawyer to clean up the mess at the end.
Generally, we will undertake the following tasks in a conveyancing transaction:
- calculate the key dates under the Contract
- arrange searches (eg. title searches and searches of government departments and local authorities)
- advise on the terns of the Contract
- prepare and certify the transfer documents
- stamp the transfer documents
- calculate the adjustment of rates, taxes and other outgoings
- prepare settlement statements
- liaise with the other side’s solicitor regarding the conditions of Contract and Settlement
- advise you on your obligations under the Foreign Resident Capital Gains Tax Withholding regime
- liaise with banks and brokers; and
- attend Settlement on your behalf.
We recommend our ‘Standard Searches’ be undertaken as a minimum.
Our ‘Standard Searches’ for the purchase of a house or land include current title search, check title search, registered plan, land tax certificate, rates balance check and special water meter reading. Our ‘Standard Searches’ for the purchase of a unit or townhouse include the searches for a house or land, and body corporate information certificate, body corporate insurance certificate, community titles statement and community management statement.
There are also a number of optional searches which are available to you during the conveyancing process, should you have any concerns about specific issues – Click here for a list of all optional searches.
When it comes to buying and selling a property, there are a number of Government/statutory charges which you need to be aware of (and heads up, they don’t come cheap!).
If you are buying, in addition to the purchase price, you may need to allow for transfer duty, registration fees for a Transfer and a Mortgage, and your share of rates and water rates on settlement. If you are purchasing a unit, you will also need to allow for your share of the body corporate levies for the current period.
Each local council has their own fee schedule that may include a change of ownership fee that will appear on the first rates notice you receive in your name. Check with your local council if they charge a fee, what it is and if you are a first home buyer, whether they offer any rebates.
If you are selling, you may need to allow for a discharge of mortgage registration fee, break fees from your bank, capital gains tax, land tax, GST and your share of the rates and water rates on settlement. If you are selling a unit, you will also need to allow for your share of the body corporate levies for the current period.
Links to the relevant calculators are below:
Land Titles Office Registration Fee Calculator
We are happy to have a chat with you over the phone prior to you signing a Contract. We also offer a free pre-signing contract review of standard REIQ Contracts.
If you cannot wait to speak to us, we recommend you consider making the Contract subject to finance approval, building and pest inspections and due diligence.
While we recommend you obtain advice specific to your needs, you may find the following due diligence clause useful as a guide:
‘This contract is subject to and condition upon the buyer(s) carrying out such due diligence inquiries with respect to this property as the buyer(s) shall require within [INSERT TIME FRAME eg. 14 days] ‘the period’) from the date of the Contract. If the buyer(s) are not satisfied with the results of those inquiries for any reason whatsoever, then the buyer(s) may terminate this Contract by notice in writing to the seller(s) or seller(s) solicitors and in that event all deposit monies shall be refunded in full to the buyer(s). If the buyer(s) do not give notice by 5pm on the last day of the period then the seller(s) may terminate this contract by notice in writing to the buyer(s) or buyer(s) solicitors and in that event all deposit monies shall be refunded in full to the buyer(s).’
If you have advised the real estate agent that we are acting for you, they will provide a copy of the Contract to us. Once we receive the Contract, we will review it and contact you that day to discuss it with you. We will also send our engagement letter to you within 1 business day which will set out the next steps.
There are some time critical issues that you should however be aware of:
Payment of the deposit – payment of the deposit is due on the day that the Contract is signed unless another time is specified in the Contract. If you do not pay the deposit by the required date, the Seller may have a right to terminate the Contract and claim compensation from you even after you pay the deposit. It is therefore essential that you pay the deposit in accordance with the terms of the Contract.
Cooling off – standard REIQ Contracts provide for a period of five business days cooling off – the cooling off period starts on the day you receive from the Seller or their agent a copy of the Contract signed by both parties or, if that day is not a business day, the next business day. If the Seller signed the contract before you did, the cooling off period starts on the day you signed the contract and communicated your acceptance to the Seller. The cooling off period ends at 5.00pm on the fifth business day. You are entitled to terminate the contract during the cooling off period for any reason whatsoever. If you do, the Seller may retain a penalty of 0.25% of the purchase price from the deposit paid under the Contract. The balance of the deposit (if any) must be refunded to you within 14 days after termination.
Insurance – the property will be at your risk from 5.00pm on the first business day after the Contract Date with standard REIQ Contracts. We recommend that you immediately arrange insurance cover so that it is in place before the property is at your risk.
Searches – in order to be fully aware of the risks you are taking on with a property, it is recommended that you instruct us to obtain searches as soon as possible. A failure to act in time in relation to a date relevant to the transaction may mean the loss of rights under the contract or an exposure of liability in connection with the property.
You may have spoken to your bank or a broker about pre-approval prior to submitting an offer on a property. Even if you have got pre-approval, it is still important to make the Contract subject to finance approval, as the bank will want to value the particular property before agreeing to take it on as security under a loan agreement.
Once a Contract is signed, you should forward a copy to your banker or mortgage broker who will then start the ball rolling with your finance application and valuation process.
We have some excellent bankers and brokers we can recommend to you if you do not have anyone you are dealing with.
If you are claiming the First Home Buyers Grant, this is coordinated by your bank or mortgage broker. If you need the grant funds available for Settlement, please ensure you advise your banker/broker of this as soon as possible.
We will provide the forms you need to claim the First Home or Home Transfer Duty Concession.
Purchasers of property worth more than $750,000.00 are required to withhold 12.5% of the purchase price and pay those funds to the ATO following Settlement, unless the Seller provides the Buyer with a Clearance Certificate from the ATO before Settlement.
When selling a property, Australian residents need to obtain a Clearance Certificate from the ATO prior to Settlement to ensure they do not incur the 12.5% non-final withholding. It is important that this certificate is obtained for each owner as soon as possible.
An application for a clearance certificate can be made at: https://www.ato.gov.au/FRWT_Certificate.aspx
Clearance Certificates are free of charge and are valid for 12 months.
If you are selling a property a property, we can assist you with the application process.
If you are buying, we will seek the Clearance Certificate from the Seller and if no certificate is received prior to settlement, we will pay the 12.5% withholding to the ATO on your behalf.
From 1 July 2018, Buyers of new residential premises, including new residential land, will have to withhold and pay the Seller’s GST liability to the ATO on Settlement. The Seller must provide a notice to the Buyer if the property being sold is captured by the GST Withholding Regime.
The new regime is designed to combat phoenixing, where developers complete residential developments and then declare the company insolvent without paying the required GST from their sales.
Don’t worry, if your transaction is caught by this new law change, we will ensure that the appropriate amount is withheld and paid to the ATO on settlement on your behalf.
We require payment to cover searches and disbursements as soon as possible. We will not be able to undertake any searches until we have receipted funds to cover the costs.
Payment of our professional fees are not however required until settlement.
The Unconditional Date is the date on which the last of any condition inserted into the Contract is due for satisfaction. The balance of the deposit its generally paid on this day.
The Settlement Date happens after the Contract becomes unconditional and is the date that the ownership of the property is transferred from the Seller. Settlement is usually a few weeks after a contract goes unconditional.
Periodic outgoings such as Council rates and water and sewerage access charges are imposed on the land and are not removed on a change of ownership. Outgoings are therefore adjusted between the Seller and the Buyer as at the Settlement Date up until the end of the current period. The Seller will pay the rates up to and including the day of Settlement. The Buyer then pays from the day of Settlement to the end of the current period. This is shown as a ‘credit’ on the Seller’s settlement statement. Any outstanding rates are paid from the sale proceeds to ensure the debt is cleared at Settlement.
If you are buying a lot in a Community Titles Scheme, the body corporate levies will also be adjusted.
Under a standard REIQ Contract, the Seller must hand over the house and any chattels if they are expressly noted in the Contract.
Clients are often surprised to learn that there is no contractual obligation on Sellers to clean the house, maintain the gardens, or the property more generally. Most Sellers do the right thing and leave the property in the condition they would expect themselves. If you are however concerned about the level of cleanliness, junk stored in the shed or around the property, a tree which needs pruning or an overgrown garden, before you put in an offer, include a special condition in the Contract which puts an obligation on the Seller – don’t just assume that these things will happen.
We also always recommend our clients conduct a pre-settlement inspection the day before or on the morning of Settlement to check the condition of the property.
Settlement is the finale of the conveyancing process, where we meet with the other side’s solicitor and the lender to arrange the transfer of the property and payment of the settlement funds. The purchaser’s lender will generally then attend to registration of the documents at the Land Titles Office. You do not need to attend Settlement.
Settlement usually occurs after 2pm as the banks need the morning of Settlement day to arrange cheques. Once Settlement is completed, we will call you to advise that it has all gone through and if you are purchasing, advise you where you can collect the keys.
Conveyancers specialise in the real property law of conveyancing and complete a one year diploma course and an additional year of supervised training. Conveyancers are limited in the amount of legal advice they can offer clients.
A Lawyer is a broad term to describe a person who has completed a Bachelor of Laws and has been admitted to the legal profession. Lawyers can work with unlimited scope on conveyancing work and can advise clients on the wider implications of their sales and purchases within the relevant jurisdiction.
Although Conveyancers are not licensed to operate in their own right in Queensland, many firms use Conveyancers, Paralegals and administrative staff to run files under the ‘supervision’ of a Lawyer.
Here at Map Lawyers, we are Lawyers specialised in property law – a qualified lawyer will be assigned to your file and will be your primary point of contact.
Absolutely – we work with many interstate and international clients who are purchasing and selling in the Queensland property market. We can do everything via email and phone.