FAQ

In the Conveyancers Act 2006 the definition of conveyancing work is legal work carried out in connection with any transaction that creates, varies, transfers, conveys or extinguishes a legal or equitable interest in any real or personal property.

For example:

• sale or purchase of a freehold interest in land

• creation, sale or assignment of a leasehold interest in land

• the grant of a mortgage or other charge

• sale or purchase of a dwelling, vacant land including house or land packages

• sale or purchase of a business and associated work such as the sale of goodwill, stock-in-trade and the transfer of any business licence

• Plans of Subdivision and Consolidation

Conveyancing is also legal work in  preparing any documents (eg. agreement, conveyance, transfer, lease or mortgage) necessary to effect any of the aforementioned transactions. In association with this work, it provides for giving advice on the preparation, perusal, exchange or registration of documents that are consequential or ancillary to a transaction and prescribed by the regulations as constituting conveyancing work for the purposes of the Conveyancers Act 2006.

Certified Practising Conveyancers (CPCs) have the support and backing of the only professional body representing the conveyancing profession in Victoria, the Australian Institute of Conveyancers Vic Division (AIC). The AIC, in representing conveyancers, is focused on one aspect of law, conveyancing, and as a member all CPCs are provided with up to date information and the support needed to act competently and professionally in that one aspect of law. Take advantage of the professional service and expertise offered to you by your CPC knowing that you are in the safe hands of an expert conveyancer.

You should speak to your conveyancer as early as possible. You should, preferably, speak to your conveyancer before you look for a property or before you decide to put your property on the market when selling. Never sign anything before consulting your conveyancer. If you are asked to sign a contract request a copy of the contract first so that your conveyancer can go through the contract with you before you sign. If you do this you will understand what you are signing. There is no such thing as a standard contract.

No you should speak to your conveyancer as early as possible. You should, preferably, speak to your conveyancer before you look for a property or before you decide to put your property on the market when selling. Never sign anything before consulting your conveyancer. If you are asked to sign a contract request a copy of the contract first so that your conveyancer can go through the contract with you before you sign. If you do this you will understand what you are signing. There is no such thing as a standard contract.

Many estate agents refer clients to a local conveyancers/solicitors. There is nothing wrong with this practice so long as it is based on the professionalism and expertise of the conveyancer/solicitor. If you don't know a conveyancer then this referral may be helpful to you.

Keep in mind that the conveyancer is there to protect your interests and if you would prefer to select your own conveyancer then you can refer to the Institute for a referral or check our web site to find a conveyancer of your own choosing. While there is usually nothing wrong with the agent referring you to a conveyancer you need to feel comfortable with it and it is your choice not the agents as to whom you use.

There is nothing legally wrong with using the same conveyancer. Your conveyancer is working for you giving you the best advice and guidance throughout your transaction.

It is not always possible to give a buyer and seller the same advice and a conflict can arise. Sometimes these conflicts are only small but can have a large bearing on your transaction and it is not always possible to predict when a conflict may arise. The small amount of savings made, if any, when using the same conveyancer will not balance out the risks that are potentially huge. Large delays can be experienced if the conveyancer cannot continue to act for either party if a conflict of interest arises.

Remember that conveyancing is not just the filling out of forms and attending to stamp duty payments. This may be the largest transaction of your life and you will want to know that your conveyancer is acting in your best interests and not compromising with someone else's at the same time.

This is the formal approval granted from your lender after they have completed their enquiries in relation to your finance application.

A Deposit Bond is a guarantee or bond that is used in substitute of a cash deposit. It can be used for all or part of the required deposit, up to a maximum of 10% of the purchase price.  It is a guarantee to the Vendor (the person selling) provided by an Insurer and can be organised through a banking institution.

At settlement you as the Purchaser are required to pay the full purchase price including the deposit amount. The use of a Deposit Bond does not remove your obligation to pay the full deposit upon settlement.

If you default under the Contract of Sale and are required to pay the deposit, then the Vendor can claim the guaranteed amount from the Insurer. The Insurer will then pursue you (the Purchaser) to recover the money paid on your behalf.

Before proceeding with any conveyancing transaction it is important to know exactly what the costs are, selling a property is no different. Ask your conveyancer for a written quotation of the conveyancing fees and charges. You should also make sure the estate agent gives you a written quotation of his fees and charges or at least the manner in which they will be calculated.

The standard costs when selling real estate are:

Fees and charges payable to discharge any loan

Agent's commission and charges for advertising etc

Rates and taxes adjustment for the period you owned the property

Moving costs

Balance of loan repayments

Conveyancing fees and disbursements (typically)

Title search

Zoning certificate from council

Drainage diagram

Agency fees (settlement etc)

Fee to arrange discharge of mortgage, when necessary

Your Conveyancers fee

Work required by your Mortgagee

Check with your Conveyancer for any other costs.

There are several costs involved in buying any real estate. It is vital that you know what they are before you commence the transaction in order to budget for them. Costs can blow out if you are not prepared and make yourself aware of what is involved.

Ask your conveyancer to give you a written quotation of all the fees and charges involved in your particular transaction so you know what the conveyancing process will cost you. Ask whether there are any other costs or charges that may arise that are not included in the quotation.  Standard fees and charges payable to your conveyancing:

- Title search costs

- Governmental Inquiries

- Agency fees for settlement etc.

- Fee for attending to loan and mortgage documents, when necessary

- Your Conveyancing fee

- Work required by your Mortgagee

- Stamp Duty fees paid to the State Revenue Office

- Registration fees paid to the Lands Department

- There may be others depending on your individual transaction.

Other costs to be aware of:

- Fees and charges for obtaining a loan

- Mortgage insurance where applicable

- Adjustment of rates and taxes for the period you own the property

- Insurance of buildings

- Removalists and other moving costs

Disbursements are the out-of-pocket costs associated with your transaction paid by Balben Property Transfers.  At settlement Balben Property Transfers will seek reimbursement from you for any disbursements incurred and will allow for these in our Statement of Account to you.

Disbursements can include any of the following examples:

- Title searches

- Local council building certificate

- Land tax clearance certificate

- Water rates certificate

- Local council rates certificate

- Dept of education

- Roads and Traffic Authority

- Electricity

- Stationary, postage, photocopying, faxes

The amount of these Disbursements will vary depending on whether you are selling or purchasing a property.

Rate Adjustments relate to the calculating of rates owing at settlement. This means that all rates and taxes on the property will be split between the vendor and the purchaser pursuant to the date of settlement.

The vendor will be required to pay all monies due on the property until settlement, and the purchaser will pay all monies from the date of settlement onward. The amount of adjustments owing by each party will therefore depend on the time of year in which the property is sold.

Whether or not a purchaser qualifies for Stamp Duty Benefits, be it a partial or full exemption, depends on the conditions of the purchase. You may qualify for stamp duty benefits if you are hold a Concession Card or Pensioner Card.

Any benefits you are entitled to, will be calculated on the value of the purchased property.

To check if you qualify for any Stamp Duty Benefits, you can contact Balben Property Transfers or the State Revenue Office.

If you intend to purchase property with finance from a bank or other lending institution, then the payment of Stamp Duty and Registration fees will generally be advanced by your chosen lending institution at settlement.

If you are purchasing with cash Balben Property Transfers will need to attend to the stamping and lodging of the documents within 30 days of settlement, otherwise penalties will apply.

Settlement refers to the date upon which the transfer of all monies and documents pertaining to the property are exchanged, including the title and thus the ownership of the property to that of the purchaser.

Do I have to attend settlement?

The settlement date negotiated between both parties will be stipulated in the Contract of Sale.  A time for settlement will be arranged prior to settlement by the Conveyancer.  Neither the Vendor or Purchaser are required to attend settlement, as this is the Conveyancer's responsibility.

The vendors and purchasers will be informed once settlement has occurred.

Generally the Vendor will provide their Real Estate Agent with keys prior to settlement.  Once settlement has taken place and the Vendor's Conveyancer has confirmed so with the Agent, the Purchaser will be able to collect the keys direct from the Agent's office.

As of 1 July 2008, any person practising as a Conveyancer in Victoria, who is not an Australian Legal Practitioner, must be licensed to continue to conduct Conveyancing work.

The Conveyancers Act 2006 (Victoria) was introduced into State Parliament after a comprehensive legislative change and thus the new laws for licensing came into effect.

In introducing the legislation the Government was also concerned to address other problem areas such as inadequate professional indemnity insurance, lack of experience and expertise, lack of any professional conduct rules and the absence of any requirement to make proper disclosure to the client of the costs likely to be involved in the transaction.

It was clear that these fundamental problems could only be addressed by comprehensive legislative change and as a result the Conveyancers Act 2006 (Victoria) was introduced into State Parliament and came into operation on 1 July 2008.

Under the Conveyancers Act 2006 Licensed Conveyancers can hold a general trust account designed for the purpose of holding money received from a client, in the course of, or in connection with the carrying out of Conveyancing work. Trust money in the form of funds received from clients on account of fees and charges in advance of carrying out Conveyancing work, must also be held in a general trust account, until such time at their Conveyance is complete.

Part 5 of the Act and Part 3 of the Conveyancers (Professional Conduct and Trust Account) Regulations prescribe strict processes for dealing with any trust monies received.

A caveat is a document lodged at the Land Titles Office to protect the rights of a person who claims to have an interest in the land. The caveat itself does not create anything, nor does it initiate any rights not already in existence. It does however act as an injunction, restraining the Registrar of Titles from registering any dealings with the property without first notifying the caveator.

There can be caveats over land without the knowledge of the proprietor, and may only be discovered once proceedings for the transfer of the land have begun. The finding of a caveat can often lead to delays up to 90 days or more between the time of signing the contract until settlement is achieved.

Any person claiming an interest in land is entitled to lodge a caveat on title, but cannot be lodged if no legitimate interest exists. Caveats can be removed through withdrawal by the caveator in an approved form.

Covenant

A covenant is a contractual agreement, creating an obligation to the owner of the land that the covenant affects.  It is passed over with the property when transferred. A covenant is used, in most cases, to preserve rights and regulate standards outside the range of easements (see below) and can either be positive or negative to the owner of the land.

Covenants can include particulars such as the minimum floor size of a house, the materials used for building, or even the use of objects on the property such as business signs.

Easement

An easement is an interest in land that allows a person to have beneficial use of another's land for a specific reason. It is therefore a restriction on the land over which the easement is held.

Easements come in many forms and property related services, but some of the most common in residential areas are sewer and drainage easements, and the combined use of a single driveway for two adjoining properties.

Some easements provide the right of passage for another over the other's property. Some easements require maintenance, meaning that to ensure the easement still applies, it must be used; such with the right of passage.  If that passage becomes unused, then that easement may be lost with time.

The particulars of an easement will be stipulated in the Title to which the easement applies. Purchasers should also note that there may be unregistered easements such as sewers, drains, water pipes, gas pipes and underground and/or overhead cables.

Common Property refers to the land which can be accessed by others living under the one strata title or owners corporation or all others living within the same block of flats, units, or apartments. The common property will usually include things such as car parking areas, court yards, grassed areas or stairways. The common property is the responsibility of all those who have claim to it; so when repairs or maintenance are required, the costs will be borne by all.

Any land which contains common property must have an appointed Owners Corporation Manager with public liability insurance including reinstatement and replacement insurance for all buildings on each lot with a minimum of $10,000,000 public liability.

Under the Building Regulations all new and existing swimming pools, spas or other bodies of water of more than 300mm in depth (including those constructed prior to 8 April 1991) must have gates and doors installed with self closing and self latching devices (located at least 1.5m above ground level) that returns the door or gate to its closed and locked position at any point from a stationary start as failure to do so may incur a fine. Further information can be obtained from your local council.

What is a Will?

When buying property it is crucial for you to also have a Will prepared.  A Will is a legal document that clearly defines how you wish your assets to be distributed upon your death.

The Importance of a Will

If you die without making a Will ('intestate'), your assets will be distributed according to law.  The reality being your estate will be distributed to relatives whom you most likely have little contact with, while your loved ones miss out.  This can or may lead to lengthy delays and expensive administration in finalising your estate.

If you already have a Will when purchasing property, you should ensure that if required, it is updated to reflect any major changes in your life.  You should ensure your Will is updated under many different circumstances, not just buying or selling property.  For example you may need to update your Will because of change in marriage/defacto or domestic relationships, separations or divorce, starting a family, buying/selling shares, retirement and the birth of grandchildren, nieces and nephews, or any other important person in your life, even your pets can be included!

Yes. You cannot list or advertise your property for sale in any way whatsoever until your conveyancer has prepared the proposed Section 32 Statement and Contract for Sale.  Anyone who makes an inquiry or an offer on your property is entitled to ask for a copy of the proposed Section 32 Statement and Contract for Sale.  Please note that can be fines payable if a copy is not available on request.

It is important that if you wish to sell without an agent, that you consult your conveyancer before doing anything further.

A CPC is a 'Certified Practising Conveyancer'. To become a CPC a conveyancer must have completed the educational and practical training requirements to hold a conveyancer's licence and be a member of the Australian Institute of Conveyancers Victorian Division. (AIC)

Being a member of the AIC means that the conveyancer must abide by the rules and codes of conduct of the AIC, they must also complete the annual continuing education requirements that are required to renew a conveyancer's licence each year. The AIC provides the facility by which members can complete their continuing education requirements.

The AIC promotes the view that members should complete more than the compulsory requirements set down by the Office of Fair Trading and that continuing education is of utmost importance to the continuing skill and expertise that is needed to remain abreast of the ever changing nature of the conveyancing profession. Most CPCs will complete more than the compulsory continuing education requirements.

Certified Practising Conveyancers (CPCs) have the support and backing of the only professional body representing the conveyancing profession in Victoria, the Australian Institute of Conveyancers Vic Division (AIC). The AIC, in representing conveyancers, is focused on one aspect of law, conveyancing, and as a member all CPCs are provided with up to date information and the support needed to act competently and professionally in that one aspect of law. Take advantage of the professional service and expertise offered to you by your CPC knowing that you are in the safe hands of an expert conveyancer.

Vendors are required to give details of any building approvals, permits and insurance (if applicable) issued in the last seven (7) years.

Subsection 137B(2) provides that domestic owner builder obligations arise if a contract to sell is entered into within a prescribed period, which most commonly is 6 years and 6 months after the date of completion of the work.  Completion means an occupancy permit has been issued (new houses) or a certificate of final inspection has been issued (alterations and additions).

In all cases, the following statutory warranties by the Vendor must be set out in the Contract of Sale:

that all domestic building work carried out in relation to the construction by or on behalf of the vendor of the home was carried out in a proper and workmanlike manner;

that all materials used in that domestic building work were good and suitable for the purpose and, unless stated otherwise, new;

that the domestic building work was carried out in accordance with all laws and legal requirements (including the Building Act and its regulations);

In addition to the above, the following requirements must also be provided by the Vendor:

a condition report which is no more than 6 months old at the time of the Contract prepared by a prescribed building practitioner (such as an architect, building surveyor or building inspector) must be given to the buyer pre-contract; and

if the value of the work is more than $16,000.00 and the owner is not a registered building practitioner, then building warranty insurance must be obtained and a Certificate of Currency provided to the buyer pre-contract.  The insurance must cover structural defects for 6 years and non-structural defects for 2 years.  Note, however, that the insurance can only be invoked on the death, insolvency or disappearance of the domestic owner builder.

If you are an owner builder it is important to contact our office so we may assist you with the correct requirements for the Contract of Sale.