Pittwater Life February 2018 Issue

Business Life: Law
Business Life
Importance of investing
in field of conveyancing
Over the years this column
has addressed the
subject of conveyancing
– what is it and its importance
to all who have property
transactions, both residential or
commercial.
Briefly a Conveyance has
been defined as “a mode by
which property is transferred
from one person to another
by written instruments and
related formalities, and also
such an instrument itself, such
as a lease, mortgage, or vesting
instrument”.
It is the science and art of
validly creating, transferring,
and extinguishing rights in
property, particularly in or over
land by written deeds of various
kinds. It has traditionally been a
major branch of legal work and
lawyers’ business.
It includes investigation of
title – the document which
at the end of a transaction is
paramount. For after every
step has been taken, if a
vendor is unable to convey a
clear unencumbered title there
will be no settlement – no
concluded transaction.
To market a property, a
real estate agent needs to be
provided with a draft contract
by a solicitor or conveyancer for
those prospective purchasers,
who having inspected the
property, wish to investigate
with their legal advisors the
specific details of what is being
offered for sale.
The draft contract contains
12 pages of conditions in what
is known as the Law Society
Contract, the latest edition
being 2017. To this is added
Special Conditions, drafted
by the solicitor and designed
to protect the interests of the
vendor; and a title search as
held in Land and Property
Information (old Titles office) –
this should show the identities
of the individuals or companies
who are registered as owning
the land upon which the
improvements or buildings are
found and if more than one
person is noted as owner on
title the manner in which their
shares are held i.e. joint tenants
or tenants in common (and if
the latter the percentage held
by each person).
The Title should also show
any plan of subdivision,
easements, covenants mortgage
or caveat and even on rare
occasions a caveat in the name
of ‘Queen Elizabeth II’ meaning
a failure to pay land tax.
Other documents to be
included should be a survey
of the property showing the
placement of the buildings or
improvements on the land,
a building certificate – this is
more optional and a serious
purchaser should seek the
Vendor’s agreement for one
to be obtained from the local
council. Plus a final occupation
certificate (if the property
is new or has had major
renovations), and a swimming
pool certificate showing that
the pool complies with recent
legislation. There are other
elements depending on the
type of property. Whether it is
with Jennifer Harris
a Retirement Village or a Strata
Title complex or Company
title and rural lands can be
different again. Frequently
Contracts are offered for ‘Off
the Plan’ property (units or
townhouses yet to be built). In
this transaction a prospective
purchaser agrees to purchase
and pays a deposit on a specific
plan – usually to be built
within a nominated period to
completion and payment of the
final agreed sum. Should the
time period not be achieved a
‘sunset clause’ may operate and
the parties can agree to rescind.
There are obvious risks in this
type of transaction.
Media comment from time to
time suggests that conveyancing
should cost very little in terms
of time and effort, this being
particularly so for residential
property. There may be some
transactions which appear
straightforward but in this
writer’s experience they can be
few and far between. There are
many matters which can add to
the complexity of conveyancing.
For example, questions of land
tax; home warranty insurance;
GST; unauthorised or illegal
structures; caveats; separate
advice for a purchaser of First
Home Owners Grant; whether
the property is subject to a
tenancy; if a retirement village
separate advice on the village
contract and advice as to the
purchasers’ rights and liabilities;
56 FEBRUARY 2018
The Local Voice Since 1991