When Should I Talk to a Conveyancer? A Guide for Australian Property Buyers
When buying or selling property in Australia, one of the most crucial aspects of the process is conveyancing. Conveyancing refers to the legal transfer of property ownership from one person to another, and a conveyancer is the professional responsible for handling these legal processes. Knowing when to involve a conveyancer, what their role is, and how they differ from solicitors is essential for ensuring a smooth property transaction.
This article explores when to talk to a conveyancer, particularly in the context of property auctions, offers, and state-specific differences. Also, Gerard Pagliaro from GM Law provides some useful comments on the difference between a conveyancer and a solicitor when choosing who to ask for help when buying a property in Australia.
When to Get a Conveyancer Involved for an Auction?
In Australia, purchasing property via auction is a common method, especially in competitive urban markets like Sydney, Melbourne, and Brisbane. However, buying a property at auction can differ from a private sale because the process is fast-paced and binding. Once the auction ends and you're the highest bidder, you're legally committed to the purchase. Therefore, the timing of when you involve a conveyancer becomes critical.
You should engage a conveyancer before attending the auction if you're seriously considering bidding. The reason for this is simple: auction purchases are final, and there’s no cooling-off period in most Australian states, such as New South Wales and Victoria. Before the auction, your conveyancer can:
- Review the contract of sale: Auction properties usually come with a pre-prepared contract. Your conveyancer will go through this contract and highlight any unfavorable terms or conditions.
- Conduct title searches: They can also investigate whether there are any issues related to the title of the property or any encumbrances such as easements or caveats.
- Clarify zoning restrictions and council regulations: It is important to be aware of local laws and regulations that may affect future property development or renovations.
If you’ve already bid on a property and won at an auction without consulting a conveyancer beforehand, it's crucial to engage one immediately afterward to begin the settlement process.
When Should I Contact a Conveyancer? Before or After Making an Offer?
It’s generally advisable to engage a conveyancer before making an offer on a property. Here's why:
- Contract Review: Before signing a contract of sale, a conveyancer can review the terms and identify any clauses that may disadvantage you. For instance, there could be clauses that allow the seller to withdraw from the sale without compensation, or terms related to the condition of the property that you should be aware of.
- Legal Advice: Property contracts are often filled with legal jargon, and a conveyancer can provide clear explanations, making it easier for you to understand what you're committing to.
- Understanding Costs: Conveyancers can also help you understand any additional costs involved, such as stamp duty, council rates, or land tax, which are all essential for planning your budget.
If you're buying a property privately (i.e., not via auction), you may have the luxury of a cooling-off period in some states (e.g., five business days in New South Wales and Victoria). This gives you a small window of time to involve a conveyancer after making an offer. However, contacting one beforehand is always the safer option to ensure you're fully aware of the legal implications of your purchase.
How Do I Choose a Conveyancer?
Selecting the right conveyancer is essential to a smooth and successful property transaction. Here are a few tips to help you choose the best conveyancer for your needs:
- Qualifications and Licenses: Make sure the conveyancer you choose is licensed and registered to practice in your state or territory. Each state has different licensing requirements; for example, conveyancers in South Australia must be registered with Consumer and Business Services, while conveyancers in Victoria must be licensed through the Business Licensing Authority.
- Experience: Opt for a conveyancer with a proven track record in the real estate market, particularly if they have experience handling the specific type of property you're interested in (residential, commercial, strata title, etc.).
- Local Knowledge: It’s beneficial to choose a conveyancer familiar with the area where you are buying or selling, as local regulations and zoning laws can vary significantly from one region to another.
- Communication and Transparency: A good conveyancer will keep you informed at every stage of the process. Ask how they prefer to communicate (email, phone, or in person) and ensure they are transparent about their fees and services upfront.
- Reviews and Recommendations: Ask friends or family for recommendations, or check online reviews for conveyancers with a good reputation in your local area.
What Can Conveyancers Do and What Can't They Do?
A conveyancer’s primary responsibility is to manage the legal aspects of a property transaction. Here’s a breakdown of what they can and can’t do:
What Conveyancers Can Do:
- Prepare and review legal documents: This includes contracts of sale, transfer of land documents, and settlement statements.
- Conduct searches: They investigate title deeds, zoning regulations, and any potential restrictions on the property, such as covenants or easements.
- Liaise with lenders: If you’re taking out a mortgage, a conveyancer will communicate with your bank or lender to ensure all financial details are in place for settlement.
- Calculate and advise on financial obligations: They can advise you on your stamp duty liabilities and any other relevant fees or taxes.
- Manage the settlement process: This includes coordinating with the seller’s conveyancer and ensuring that the settlement occurs on time.
What Conveyancers Can’t Do:
- Provide broader legal advice: If your transaction has complex legal issues beyond property law—such as estate planning, family law, or tax law—you'll need to consult a solicitor.
- Represent you in court: If a property dispute escalates to litigation, a conveyancer cannot represent you in court. You would need a solicitor or a barrister for that.
- Provide financial advice: While conveyancers can explain certain costs associated with buying property, they are not financial planners and cannot provide advice on investment strategies or financial products.
What is the Difference Between a Conveyancer and a Solicitor?
While both conveyancers and solicitors can manage the conveyancing process in most states, In Queensland a solicitor with a current practicing certificate must be responsible for the conveyance. A conveyancer is not authorised to carry on conveyancing in Queensland in their own right.
‘The difference between a conveyancer and a solicitor explains Gerard Pagliaro is, that a solicitor has completed a law degree and met the rigorous legal requirements in Qld to practice law. A conveyancer in Qld, whilst trained to manage conveyancing files under the direct supervision of a lawyer, does not have any formal qualifications and is not legally qualified to operate a legal practice. As to the question of legal fees, the legal fees charged by a law firm in Qld, like in other states, are determined by the marketplace. Solicitors are generally no more expensive than conveyancers and can often be cheaper. Like in any industry or profession there is always a spectrum of fees charged for Conveyancing and Gerard Pagliaro suggests you do your homework and speak to the law firms you are obtaining quotes from, to ensure you understand what services they are providing. Whilst there is a protocol that solicitors in Qld generally operate within, the services provided from one firm to the next may vary greatly as does the level of expertise of the personnel specifically tasked with managing your file.
Conveyancers:
- Specialisation: Conveyancers are trained specifically in property law and conveyancing transactions. They are typically more affordable than solicitors due to their narrower focus.
- Licensing: Conveyancers must be licensed in the state or territory they practice in, and their qualifications are geared toward property transactions only.
- Cost: Conveyancers generally charge lower fees than solicitors, making them a popular choice for straightforward property deals.
Solicitors:
- Broad Legal Expertise: Solicitors have broader legal training and can handle not just conveyancing, but also more complex legal issues related to property, such as disputes, tax implications, or business ownership questions.
- Court Representation: If a property dispute arises, a solicitor can represent you in court, whereas a conveyancer cannot.
- Cost: Because solicitors offer a wider range of services, their fees are typically higher than those of conveyancers.
State-Specific Differences in Australia
Conveyancing practices can vary between Australian states and territories. Here are some key differences:
- New South Wales: In NSW, buyers are allowed a five-day cooling-off period for private sales, but this doesn’t apply to auction purchases.
- Victoria: Similar to NSW, Victoria has a five-day cooling-off period for private sales but no cooling-off period for auctions.
- Queensland: Queensland allows a cooling-off period of five business days for private sales, but auctions are binding, with no cooling-off period.
- South Australia: In South Australia, there’s a two-day cooling-off period for private sales, while auctions are final.
- Western Australia: WA does not have a mandatory cooling-off period, whether for private sales or auctions.
Engaging a conveyancer familiar with your state’s regulations is crucial to avoid potential pitfalls.
Conclusion
When buying or selling property in Australia, it’s important to involve a conveyancer early in the process. Whether you're bidding at an auction or making an offer on a private sale, a conveyancer can provide critical legal advice and support. Understanding the difference between conveyancers and solicitors, and knowing how to choose the right professional, will help you navigate the complex world of property transactions with confidence.
