What is involved with conveyancing?

Conveyancing is the process by which a buyer buys a property and a seller sells a property.  Conveyancing includes all of the steps from reviewing or drafting a contract through to the end of the sale or purchase when the property is transferred to you or you receive the proceeds of the sale.

Can I do my conveyance myself or do I need a conveyancer/lawyer?

Conveyancing is quite a complex area of law and there are very specific processes to need to be followed, all of which our lawyers and conveyances are highly experienced in. A small oversight or error in a conveyance can cause significant legal implications and costs – such as a party terminating the contract, suing the other party or a buyer not becoming aware of adverse issues affecting their property. For these reasons, very few buyers and sellers undertake their conveyance themselves due to the potential legal risks in doing so.

Should I see a lawyer or a conveyancer before I sign a contract?

In most or all cases, we recommend that you arrange for your lawyer/conveyancer to review your contact before signing.  A contract has important legal implications for you when you sign it and in most cases you will not have any opportunity to change the terms once signed – meaning that it is vital to ensure that all of your required inclusions are in the contract and that you understand what you have agreed to.

What if I change my mind after I sign a contract? What is a cooling off period?

Under many contracts, a buyer will have a cooling off period (being 5 business days from the date the buyer receives the fully executed contract) in which the buyer can terminate the contract for no reason.  However when terminating within the cooling off period, the buyer needs to be aware that the seller is entitled to retain a termination fee of 0.25% of the purchase price out of the deposit and then the buyer receives the rest of the deposit back. For example, on a $300,000 purchase price, the termination penalty would be $750.

There is no cooling off period for some contracts, such as contracts entered into at auction and there is also no cooling off period if you purchase commercial property. If there is no cooling off period available, then a review of the contract terms would need to be undertaken to ascertain if any other rights of termination exist.

Why do I have to conduct searches?

If you are buying a property, we need to undertake searches to check whether there are any problems with the property that might allow you to terminate the contract as well as to check whether the seller has been paying things like water and rates bills. We also use these searches to make it fair between the seller and the buyer if, for example, the seller has prepaid rates for a period in which the buyer will own the property.

What is transfer duty and can I get out of paying it?

Transfer duty is a tax paid to the Queensland government on most acquisitions of property in Queensland.

Everyone has to pay transfer duty unless they are eligible for a concession.  Examples of when concessions are given are if you purchasing your first home or land on which you will build your first home.

If you plan on living in the property, you will still need to pay some transfer duty but may be entitled to a discount. There are very strict requirements about claiming the concessions or discounts and our conveyancers can advise you whether you are eligible or not.

Will I need to pay GST if I purchase a property?

If you purchase a house or unit that has already been lived in, generally there will be no GST payable in addition to the purchase price, although you need to be sure to check this with your conveyancer/lawyer or accountant.

If you purchase a block of vacant land or a newly constructed property, GST could be payable in some cases and you should check with your accountant or conveyancer as to whether you will need to pay an extra amount for GST in addition to the purchase price.

If you purchase a commercial property, you may need to pay GST unless there is a GST concession available.

I've received an unsatisfactory pest and building report – what do I do?

You should tell your conveyancer and the real estate agent straight away and explain clearly what you are not happy with.  If you have acted reasonably in relation to the issues, you may be able to terminate the contract.  For example, you are unlikely to be able to terminate the contract if you not happy with a scratch on a door but you might be able to if the house is not structurally sound.

If you don’t want to terminate the contract but would like to seller to deal with the issue, your conveyancer can seek to negotiate with the seller for a reduction in the purchase price or for the seller to do repairs before settlement.

My bank has declined my finance application – what do I do?

You should firstly tell your conveyancer what has occurred.  In some contracts, you might need to apply to a few different banks and receive decline letters from them before you terminate the contract if your contract was subject to you getting a loan.  You should also give your conveyancer a copy of the decline letter.

If you are able to terminate the contract, your conveyancer will tell the seller’s solicitor and in most cases you will get your deposit back.

I'm not an Australian citizen or permanent resident – can I still purchase a residential property?

Yes, but the properties you can purchase are much more limited than if you were an Australian citizen or permanent resident. Generally, foreign persons can buy:

  • newly built houses that no one has lived in before;
  • vacant land subject to the condition that they build a house on it within a certain period of time; or
  • if the foreign person is a temporary resident (which doesn’t include people on tourist visas) then they can purchase an existing house but they must live in it and then sell it if they want to live in a different property or move back to their home country.

If you think you could be eligible to purchase a property, you must still apply to the Foreign Investment Review Board (FIRB) to purchase the property and your contract must be made subject to this approval being given.  There is an application fee of $5,000 per applicant which must be paid at the time of making the application and is non-refundable.

You may also need to pay additional transfer duty to the Queensland Government.

The approval usually takes around 30 days to be processed, so it is important that you tell your conveyancer as soon as possible if you need them to assist you with this.

What is an "off the plan" purchase and what do I need to do to sell property off the plan?

An “off the plan” purchase is the purchase of a property that is part of a bigger bit of land that is being divided off into smaller pieces.  In order for you to buy the smaller bit, the seller must record details of the subdivision at the relevant government department.  Once the subdivision has been recorded, settlement can then go ahead.

To sell property off the plan, the seller usually needs to give the buyer a disclosure statement and a disclosure plan with the contract.  The seller also usually has a period of up to 18 months (for land) or 5 ½ years (for units) to settle the sale.  If a buyer doesn’t get the extra documents with the contract, the buyer might be able to terminate the contract.

What happens on the settlement date?

On the settlement date, if you are buying a property your conveyancer will check the title of the property to make sure that nothing has changed since they last checked the title.

If the title is clear, the conveyancers and banks for both parties will go to an agreed place at an agreed time to exchange cheques and transfer documents.  Once this exchange is complete, settlement has occurred.

After settlement, the buyer’s bank or conveyancer will register the transfer documents with the Queensland government, who update their records in accordance with these documents to note the buyer as the owner of the property.