Property law relates to dealings concerning real estate, most typically the sale, purchase, and transfer of land. It also encompasses various other matters such as retail and commercial leasing, mortgages, property development, and disputes over dividing fences, easements, and encroachments. Our experienced property and conveyancing team can assist with a range of matters and will provide expert advice and guidance to protect your interests and what is often your largest financial asset.
Conveyancing in New South Wales
Conveyancing is the process of transferring the legal title of property from one party to another. In New South Wales, the conveyancing process involves several stages, starting from the negotiation of the sale contract to the final settlement, which is now completed online rather than in person.
It is common for buyers and sellers to engage licensed conveyancers or solicitors to handle a conveyancing transaction on their behalf. Their role includes conducting property searches, reviewing and negotiating contracts, coordinating with lenders, and facilitating the settlement process. A solid understanding of contract and property law, and knowledge of the various regulations and processes is essential to mitigate risk for clients and complete a successful conveyancing transaction.
If you are buying, the principle of caveat emptor (buyer beware) generally applies. You need to do your due diligence before contracts are binding so you know what you are getting. The contract and disclosure material provide significant information about a property and should be carefully reviewed. However, certain issues may not be obvious from the documents on hand or a general inspection. Additional investigations such as pest and building reports can help flag potential issues so you can make informed decisions about your proposed purchase.
We will step you through the conveyancing process, review and explain the contract terms and any cooling-off rights and guide you through your entire property purchase from start to finish.
If you are selling, you have specific obligations as a vendor. Before marketing the property, you will need a written contract for sale available containing certain disclosure material. We can prepare your contract, obtain the disclosure documents, explain your rights and responsibilities as a vendor, and help you with any special conditions to protect your interests. Once a purchaser is found, we will liaise with your agent and the buyer’s legal representative to ensure your matter proceeds as smoothly as possible.
Internal and Family Property Transfers
Sometimes shares or interests in property are transferred and the transaction does not involve a typical sale/purchase arrangement. Such transactions might occur, for example, when a joint co-owner of property dies, property is left to somebody in a Will, or subject to a family law property settlement or court orders.
While the idea of transferring the whole or a share of property might seem simple, there are legal and financial implications. You will need to consider whether the transfer triggers tax and stamp duty liabilities, so it is important to get professional advice before preparing for and completing the transfer.
We can draft the correct documents for the transfer and assessment of duty (or duty concession) and lodge the transfer with the relevant authorities. You may also want to consult your accountant to ensure that you understand any tax-related issues such as capital gains tax and the financial effect of your proposed transfer.
These days, it is unlikely to be able to pay cash for a property and most people will need to borrow funds to enter the property market. In such cases, your lender will require that you grant a mortgage over the property. Generally, a mortgage is a ‘statutory charge’ in favour of the lender over property (usually) held in the borrower’s name. The mortgage secures the repayment of the money loaned and is registered on the property’s title.
Registration of a first mortgage protects the lender by creating priority for payment of the debt and alerting others who may be interested in the property. If the property is sold, the mortgage will need to be removed before it is transferred to the new owner. This can only occur when the secured loan is repaid, or other arrangements are made between the lender and borrower.
By signing a loan agreement and granting a mortgage you are liable for regular repayments and other fees and charges set out in the loan documents. Amongst other things, the agreement will usually stipulate that the property be adequately maintained and insured, and the lender will have a right to sell the property in the event of specified breaches. It is important to understand all your legal obligations as a borrower/mortgagor, which we can explain to you.
Property development generally involves the improvement of land for profit. Whether your project involves the subdivision of one lot into two, or multiple lots for development, there are many legal and financial matters to consider.
Property development is governed by legislation, regulations, planning schemes and policies administered by local councils and other government bodies. It is important to understand the overlap of the relevant laws, and the processes required to achieve the proposed objectives and minimise costly mistakes.
Collaborating with experienced solicitors and other professionals to check off due diligence matters, liaise with relevant authorities, and to prepare and explain titling and legal concepts is invaluable throughout this process.
If you need assistance, contact one of our lawyers at [email protected] or call 02 6885 0025 for expert legal advice.
