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Property & Conveyancing

Buying and selling property or Conveyancing can be a stressful and complex time for those involved. For those inexperienced in the property market, the process is often daunting and mysterious and mistakes can be very costly.

Each transaction is unique, requiring proper understanding and attention to a variety of matters relating to the property to ensure that your transaction is secure.

The Conveyancing process is not limited to those buying and selling property on the property market. The implementation of various Family Law Agreements often requires the conveyance or transfer of title in particular property between spouses. Where the Court confirms a Will through a grant of probate, it may also be necessary to convey or transfer various property titles to relevant beneficiaries.

At Heckenberg Lawyers, we are experienced in all types of property transactions, regardless of the circumstances in which they arise or become necessary.

Buying Property

If you are buying a property, we will ensure that you properly understand the Contract for Sale that you are entering into, as well as all the rights and obligations associated with your acquisition.

Where necessary we will negotiate amendments to the Contract for Sale on your behalf and liaise with your financier to ensure that you and your money will be ready for settlement. We will investigate and enquire into the title of the property you are purchasing. If any issues arise, we will deal with them efficiently and resolve them so that on settlement you receive proper and secure title to the property.

Selling Property

If you are selling property, we will prepare a Contract for Sale that effectively secures your rights as the vendor, whilst at the same time attracts the maximum amount of purchasers potentially interested in the property.

Where prospective purchasers arise, we will facilitate negotiating a contract to secure a purchase on conditions that are favourable for you.

Where your property is secured by way of registered first mortgage, we will ensure that all proper documentation is prepared and available, so that the settlement of your conveyance takes place as smoothly and efficiently as possible.

When buying a property, a purchaser will need to inspect, scrutinise and understand intimately the property they are planning to invest their money and their dreams in. Knowing the full nature of the property being purchased is, of course, an essential step in the conveyancing process. Often, however, estate agents and developers will offer properties for sale that cannot be inspected because they are nothing more than architectural drawings on a plan. This approach to purchasing property is called ‘buying off-the-plan’ and presents unique opportunities but also unique challenges and potentially dangerous pitfalls.

What is Buying Off the Plan

When a purchaser buys ‘off-the-plan’ it means that they purchase a property that is not yet constructed and, often, not yet approved. This form of purchasing property arose during the 1980s when property developers operating within the booming economy of that decade began to find demand for inner city units beginning to outstrip supply. Seeking to meet this surging demand faster than construction deadlines allowed, developers began to offer apartments that had not yet been constructed.

This system of purchasing homes and offices that are not yet built continues to be popular, especially in the inner metropolitan areas of Australia. As mentioned earlier there are potential benefits for a purchaser in buying off-the-plan. Indeed, buying off-the-plan can sometimes mean purchasing a property that will be worth a lot more when completed. (Of course, the opposite may also be true.) While buying off-the-plan can make financial sense, the purchaser should be aware of the large number of legal issues associated with buying a property that is not yet built. When buying property having knowledge and good legal advice is the best defence to falling prey to those potential problems.

The purchase of off-the-plan property comes with the following risks:

  1. Changes in Value - while the market value of the property may grow during construction, there is no real guarantee that the selling price will reflect the market value of the property when it is completed.
  2. Plan Modification - when completed, the final product may not be quite as you imagined it. As ‘off-the-plan’ purchases will be no more than architect’s drawings, it is quite likely that they will be subject to alteration during construction. In many cases, local council approval may not have been forthcoming for the project at the time of your purchase and this may mean further alterations to the final product before approval.
  3. Quality of Construction - generally, there will be no guarantee with an unfinished building that elements such as fixtures and quality of workmanship will be upheld. With a finished building it is a simple matter to have building inspections carried out. Of course, with a plan on a drawing board this luxury is not available.
  4. Strata Management Issues - an essential element in purchasing strata title property is running a check on owner’s corporation records to see what arrangements have been made for management of the property. In terms of off-the-plan strata title properties, the assurance given by this process is not available. When buying into a scheme in this manner you may not know what arrangements the developers have made in order for the development to be managed. The example of the troubled Regis Towers development in Sydney and its issues regarding management should serve as a cautionary tale for many seeking to buy strata units or offices off-the-plan.

Obtaining sound legal advice will help protect your interests when buying off the plan. An experienced legal counsel will help you with:

  1. Contract for Sale - the date for the completion of the contract will be the date that the building is completed, the strata plan registered and it is ready for occupation. Normally, the purchaser will pay a 10% deposit at the point of contract exchange.

    Your solicitor should very carefully check the conditions of the contract for sale. During this process you should be aware exactly of what benefits and restrictions are implicit in the contract. You will need to understand whether there is a penalty for withdrawing from the contract, and what changes (if any) you can make to the finishes and fixtures before occupation. You will also need to be sure that if the building is completed ahead of schedule that your finance is arranged for the contingency of an uncertain settlement date.

  3. Insurance - is a very important factor in an off-the-plan purchase. Insurance will insure you against the risk that the building is not completed. Normally, the certificate of insurance will be attached to the contract. However, in the case of strata development the developer will be exempt from attaching a certificate of insurance.

    The Home Building Act 1989, however, requires the developer of a strata unit development to have insurance and they must provide this certificate to the purchaser within 14 days of the insurance being obtained. If this certificate is not forthcoming, you can (and would be wise to) withdraw from the contract.

Case Studies

Testamentary Freedom in a Will - Goldberg vs Landerer

It is commonly considered that you can leave your assets to whoever you wish.

However, testamentary freedom is balanced by family provision legislation, which requires a person to make adequate provision for the proper maintenance, advancement, and education in life of an eligible person.

A failure to make adequate provision for an eligible person in your Will can result in the court intervening in your Will and making adjustments in order to provide this adequate provision.

A recent example of a family provision claim challenging testamentary freedom can be seen in the New South Wales Supreme Court decision, of Goldberg v Landerer.

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