Experienced Conveyancers
Resources for Agents
We enjoy helping others provide the best customer experience possible and have developed relationships with like minded people throughout the industry. The following tips and resources are provided to foster an informed and supportive network that benefits everyone.
Tips and Resources
It is vitally important to consult a lawyer when it comes to creating or assessing special conditions. To that end, please follow the provided link and take advantage of our range of ‘template’ special conditions that have been reviewed by our expert property solicitors. We also offer our clients a free pre-signing contract review service (for standard REIQ Contracts) and are happy to draft any special conditions required by our clients.
This may sound simple, but it is important to get the Buyer and Seller to check and double check the spelling of their names and ensure their names are recorded in full, including any middle names. Also be mindful to check if a Seller is selling in her maiden or married name.
If the Buyer or Seller is a company, the name of the company and the ACN or ABN should be recorded (eg. ABC Pty Ltd ACN 000 111 222).
Also consider if the Buyer or Seller is acting in capacity as trustee of a trust (eg. ABC Pty Ltd ACN 000 111 222 ATF ABC Trust, or ABC Pty Ltd ACN 000 111 222 Trustee under Instrument 123456789). If the client is unsure, they should check with their lawyer or accountant.
Similarly, if a Seller is selling in their capacity as ‘Personal Representative’ or executor under an estate, then this needs to be recorded on the Contract (eg. John Jacob Smith as Personal Representative Under Instrument 123456789).
If in doubt, record the Seller exactly as on the title. The Buyers should have their solicitor or accountant check that the buying entity is correctly recorded.
If the Buyer and Seller are not recorded correctly, the Contract may not be a valid Contract and correcting an error is not just as simple as making an amendment and having the parties initial the change. There can be significant transfer duty implications if the Buyer and Seller details need to be amended and a Deed of Rescission and New Contract will often be required which only causes additional legal fees, uncertainty and inconvenience for the parties.
It sounds simple, but check the physical and legal description of the property to make sure it is correct – in particular, if the property is over two or more lots. If you do not have a copy of the title search and want to confirm the legal description, you can check this against the Council’s online records and via this useful property search bar.
We recommend that the parties clarify what chattels are to be included and excluded so that everyone is on the same page and there are no last-minute dramas on settlement day. Typically, fixed flooring coverings, window coverings, light fittings, fixed air-conditioners, oven and cooktops, rangehoods and dishwashers stay with the property. Sellers will generally remove the fridge and washing machine.
If a Buyer is purchasing a property subject to an existing tenancy but the tenants have agreed to vacate before settlement, the tenancy should be recorded on the Contract. We would also recommend a Special Condition be included providing for vacant possession on Settlement so that the parties are protected.
Often agents will leave the GST Withholding Obligations part of the Contract blank in fear of getting it wrong.
The Buyer must advise whether they are registered for GST and acquiring the land for a creditable purpose. You can undertake a quick online search to confirm if the buying entity is registered for GST here, or alternatively, the Buyer can confirm this with their accountant. Note, a ‘creditable purpose’ is defined as the carrying on of a business enterprise (for example, a building company buying vacant land from a developer to build a house and on-sell it. It does not apply to typical ‘mum and dad’ residential investments).
If acting for a Seller, the GST Withholding obligations only apply where the sale is for the supply of either new residential premises or residential land (new or potential).
New Residential Premises means any property that has not previously been sold as a residential property or results from the construction of a new building to replace demolished premises on the same land, but for these purposes does not include premises that have undergone a substantial renovation, or commercial residential premises.
Potential residential land means land which is permissible to be used for residential purposes but does not yet contain any buildings which are residential premises.
If the Seller is not registered for GST and is selling an established dwelling, the Buyer is not required to make a payment under section 14-250 of the Withholding Law in relation to the supply of the Property.
If the Seller is registered for GST and is bound by the withholding obligations, the Buyer will need to ensure that the Seller’s GST liability is paid on settlement. It is important for Buyers to understand that this is not in addition to the purchase price and is to be paid out of the Seller’s sale proceeds. If we act for a Buyer, we take care of this process on their behalf. Similarly, if we act for the Seller, we ensure that the correct notice is served to the other party and the Seller’s GST liability is paid on settlement.
It should be your preference to settle transactions electronically via PEXA – there is a greater likelihood that a PEXA transaction will settle on time, there are no bank cheque fees and funds are transferred into a client’s account in cleared form that day.
We recommend agents include the following special condition in Contracts where possible:
It is an essential term of this Contract that settlement shall occur by way of an Electronic Settlement using the ELNO system operated by PEXA and in that regard the parties agree that an affirmative notice by each of them under condition 11.1(1) of the Contract herein shall be deemed to have been given.
We often get asked lots of questions around the calculation of transfer duty, particularly in more complex cases such as:
Where individual has previously owned property before and the other has not and their eligibility for grants and concessions
Where an individual may be a foreign or temporary resident
Where a Buyer is purchasing a house and land package and is eligible for the first home vacant land concession
Where a first home buyer is purchasing a property as their first home, but it is subject to an existing tenancy in place; and
Where a Buyer is purchasing two or more properties from the same Seller and the aggregation rules apply.
We’re more than happy to have a free, initial conversation with your client (or yourself) around these issues.
If issues are identified by a Buyer, we always suggest that they speak to the selling agent in the first instance to see if the Seller is agreeable to either repairing any items or reducing the purchase price. If an agreement is reached, we then formalise that with the Seller’s solicitor. We find that this approach works best for all parties as often the agent has direct contact with both parties and can finalise a deal much quicker and in a less adversarial manner.
How We Work
At MAP Lawyers, we enjoy working with like minded professionals who enjoy providing a seamless transaction for our clients. We pride ourselves on the level of client care we provide and because of this, we have fostered positive relationships with a range of industry partners.
If you are interested in working alongside us and extending a positive property journey to your clients, we can assure you of the following:
An exceptional level of service for your clients at an affordable price point (see our website for our online quote calculator which provides a complete breakdown of our fees and search costs which are specific to your client’s property)
You will be kept informed and up to date as the matter progresses; and
You will not find a more committed and reliable team than the team at MAP Lawyers – let us prove it to you and your clients.
As a leading conveyancing firm, we are here to help each party involved in the process receive the best service. Reach out to us by calling 1300 680 584 or emailing contact@maplawyers.com.au. If you would like to download a pdf of the information above, please feel free to do so here.