KEY TAKE-OUTS
- The most common mistakes we see when buying or selling property.
- What you can do to avoid making mistakes when buying or selling property.
- The importance of conducting due diligence.
- The importance of engaging a Licensed Conveyancer and seeking legal advice.
Whether you’re buying or selling a property in New South Wales, and this is your first time or your twentieth time doing so, the process can be daunting. Maybe you’ve been explained the process or have been through it before but are still feeling a bit anxious that you might miss something.
To help with those buying or selling anxious feels, we’ve put together a list of the most common conveyancing mistakes and how you can avoid them.
Not performing due diligence
Have you heard the term ‘caveat emptor’? It’s Latin for ‘let the buyer beware’ and in New South Wales essentially means that the onus is placed on the buyer to inspect the property and ensure they are satisfied with its condition before entering into the Contract.
For this reason, it’s vital that the buyer conducts their due diligence before locking themselves into the purchase of the property. The most common forms of ‘due diligence’ include:
- Obtaining pest and building inspection reports. This will help ascertain the condition of the property;
- Obtaining a strata report. If the property forms part of a Strata Scheme, this report will give you information about the levies payable, the overall financial status of the strata scheme, copies of the minutes of the previous Annual General Meetings, information about any special levies and past works history, amongst other things;
- Government enquiries – this relates to Government bodies and whether they have any proposals to acquire all or part of the land. For example, you can instruct your legal representative to make enquiries with Transport NSW, to ensure there are no road widening proposals.
Less common but just as important are:
- Survey – this will show you the exact boundaries of the land and the location of all structures on it;
- Building Certificate – this will confirm that no structures on the land are subject to demolition or upgrade orders by Local Council.
In some instances, buyers are reluctant to obtain certain reports or certificates due to the cost associated with them but given how much you are prepared to invest in the purchase of the property, we consider it a small price to pay for peace of mind. It is so important to know exactly what you’re getting and in some instances what you’re getting yourself into. Some reports or certificates may reveal matters that impact your decision to purchase the property.
Not getting legal advice
The Contract for Sale contains a number of clauses and conditions that are written using legal jargon and impose rights and responsibilities on the parties to it. It also contains information about the property being sold/purchased including but not limited to easements and covenants affecting the land, zoning information and the location of sewer infrastructure. Entering into a Contract without getting advice on the Contract is a common mistake you don’t want to make. You love to hate a horror story, so here are some examples of why getting legal advice on the Contract before you lock into the purchase of a property is so important.
Yes, you can build a house on the land … or can you?
A young couple were purchasing a block of land. The Agent was asking them to sign a Contract and pay a holding deposit. They obtained advice on the Contract from us first which revealed that the property had a 10m wide powerline easement which would restrict them from building their dream home on the lot. Because they didn’t sign a Contract or pay a holding deposit, they didn’t lose any money and were able to continue their search for their perfect block of land to build their dream home.
Sold at the fall of the hammer
An investor purchased a property at auction. He did not obtain legal advice on the terms of that Contract prior to attending the auction and was successful on the day. No cooling off period applies to the purchase at auction and so he was locked into the purchase. The Contract contained a clause which required the Purchaser to pay for a portion of the Vendors Land Tax. This was payable in addition to the purchase price and amounted to thousands of dollars which the Purchaser hadn’t accounted for in their figures. Had the Purchaser obtained advice on the Contract prior to attending the auction they would have been advised of the clause and could have negotiated the terms of the Contract prior to it or revised their highest bid to allow for it.
Not obtaining loan approval
If you require finance to complete the purchase of a property, it’s imperative that you obtain a loan approval prior to Contracts becoming unconditional (locked in). The reason for this is that once you are locked in, you cannot cancel or get out of the Contract if it is later determined that you can’t secure the finance required to complete the Contract. Instead, you would forfeit your full 10% deposit, lose the ability to purchase the property and may be sued by the Vendor for losses and damages upon resale.
It is recommended that you obtain loan approval as part of a 2-step process.
Step 1 – Obtain pre-approval
This is an indication from the bank that they can lend you a certain amount of money but is subject to certain conditions being met. This is important to obtain before looking for a property to purchase and certainly before making an offer on a property so that you have a realistic idea of what you can afford.
Step 2 – Obtain Formal Approval (also called unconditional approval)
You can progress from a pre-approval to a formal approval stage once you have found a property you want to purchase. A formal approval is issued when all conditions have been satisfied which may include the bank conducting a valuation of the property. It is important to consider that the bank will only lend a portion of what they determine to be the value of the property not the purchase price. Ideally you want the value, as determined by them, to be the same as the price, but if they determine the value to be less and you don’t want or have the ability to inject more of your own funds into the purchase, you won’t be able to proceed with the purchase because you won’t have the funds to complete.
Not engaging a Licensed Conveyancer/Property Lawyer
The role of your legal representative is to facilitate the legal process of buying or selling. They ensure that process runs smoothly and that all your legal requirements are met. It is important that you engage someone who is qualified, has experience and can provide simple explanations without legal jargon… but it’s even more important to engage a legal professional who is an expert in their field.
Lawyers are qualified to practice in any area of law, but this doesn’t mean that they do. They can be specialised in one particular area of law or work across several areas. It is important to engage a Licensed Conveyancer or Property Lawyer when you are thinking of buying or selling property. A Licensed Conveyancer or Property Lawyer only practices in the area of Property Law. It’s what we do day in, day out and as such, are experts in the field.
Given how quickly the requirements, processes and laws change, there is an element of risk if you enquire a legal representative who isn’t as familiar or as well-versed in Property Law. Would you go to a dentist for orthodontic work?
ABOUT MELINA COSTANTINO
Melina joined the Coutts team in 2010 working as a Licenced Conveyancer within our Property & Conveyancing team, based out of our Campbelltown office. Her commitment to client services saw her progress further and into the role of a Senior Licensed Conveyancer in July 2022.
She graduated with a distinction in the Advanced Diploma of Conveyancing and is accredited with the Australian Institute of Conveyancers NSW.
For further information please don’t hesitate to contact:
Melina Costantino
Senior Licensed Conveyancer & JP
info@couttslegal.com.au
1300 268 887
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
