Conveyancing & Property Law
Here at Castro Legal, we understand that buying or selling property is a big decision and an important milestone for most people. We offer a high level of experience with property law in New South Wales and have represented both buyers and sellers of property for all legal matters. This brings peace of mind to our clients.
When you work with us, you will receive attentive and knowledgeable service communicated in plain-English. We understand the importance of moving quickly, especially when property and auctions are involved. We provide quick turnaround and after-hours assistance, so you don’t have to miss out on the property you want.
We can help you with
- Buying or selling
- Residential, commercial and strata
- Rural and vacant land
- Auctions
- Off the plan property
- First home buyers
- Transferring property
- Guarantors
- Leases
- Granny Flat Agreements
Buying Property
Buying a home is one of the most stressful and expensive things you will ever do. It’s vital that you seek legal advice from someone experienced in property law and who knows the area.
The first round of decisions you will likely need to make is in regard to finance. Make sure you read everything thoroughly, from the pre-contractual statement which outlines the fees and charges to which you’ll be subject to the actual mortgage contract itself. Remember you are entitled to legal advice and are under no obligation to sign anything on the spot.
Once you have found a property you like, you will need to arrange a pre-purchase building inspection report and perhaps a pest inspection report. These are written reports about the condition of the property and helps you find out any potentially costly problems. You may be able to use this information to negotiate a reduction in the purchase price. If you’re not sure who to trust to do this inspection, talk to your lawyer. They will be well aware of which inspectors are worth hiring.
If you’re happy to proceed, you can make an offer. You might be asked to pay a small sum as an initial deposit, but this is fully refundable if you don’t end up signing the contract. It does not mean that the property is yours yet either, as the agent can take other offers.
Before settlement the purchase price will be adjusted to reflect the council rates, water rates and strata fees that need to be shared between the parties. There may be other adjustments, based on the Contract for Sale.
Once settlement takes place, the real estate agent will be be authorized to release the deposit to you, less their fees.
If your offer is accepted then take the contract you’ve been given to your lawyer and discuss your situation with them. There may be several things that can be negotiated in your favour, and you need to be absolutely clear on your rights and responsibilities before signing.
When you do sign the contract you will need to pay the 10% deposit, unless your lawyer has negotiated a special condition otherwise. This is held with the real estate agent and is released to the seller after the property is settled. If you don’t have 10% available your lawyer/conveyancer can advise in regard to getting a deposit guarantee in lieu of the cash.
After the contract has become binding, your lawyer has a number of tasks to perform including:
- Arranging payment of stamp duty
- Liaising with the lender in regard to the mortgage
- Checking with various government authorities to see if they have a vested interest in the property
- Checking to see if there are any outstanding debts to local council
- Calculating adjustments for council, water and strata rates
- Making final checks on the title
Settlement takes place via an online electronic platform called “PEXA” where your lawyer, the seller’s lawyer and any lenders involved will complete all necessary steps to settle the transaction within that online environment. The keys will be released to you once settlement is complete.
Selling Property
Once you’ve made the decision to sell your property, one of the first tasks is to have the Contract for Sale of Land drawn up.
The contract will include not only the legal terms and conditions of sale, but will also specify what items are included or excluded from the sale, and any other special requirements you might have like a longer or shorter settlement than usual, or perhaps that the contract be conditional upon another contract for you to buy your next property. There are a lot of ways that a contract can be varied, so it’s important to discuss your situation in detail with your lawyer.
You also need to know your disclosure responsibilities, as failing to disclose certain things can lead you into a lot of trouble.
Once a purchaser has been found and the contract has been signed and is legally binding, then a deposit is usually paid by the purchaser and is usually held in the trust account of the selling agent.
Settlement (the day that the money is exchanged for the property and keys handed over) is scheduled in accordance with the contract, and is usually 6 weeks after signing contracts. During the wait for settlement your lawyer will liaise with your bank in relation to releasing any mortgage held on the property. In this time you should arrange disconnection of electricity and other services.
Before settlement the purchase price will be adjusted to reflect the council rates, water rates and strata fees that need to be shared between the parties. There may be other adjustments, based on the Contract for Sale.
Once settlement takes place, the real estate agent will be be authorized to release the deposit to you, less their fees.
Transferring Property
There are many reasons why people choose to transfer property. Some common reasons include:
- Transfer between family members
- Due to marriage
- As a result of a marriage breakdown
- One of the parties of a joint ownership property has passed away
Whatever the situation, the legal process involved will be different for every matter. It is important that you have a qualified property lawyer as they will know the conveyancing process involved in transferring property for your particular situation.
Castro Legal can assist by:
- Advising you of the stamp duty amount payable. In some cases, you may be exempt to pay stamp duty.
- Preparing and submitting Exemption of Stamp duty application forms (if applicable).
- Preparing all necessary property transfer documents and execution of the documents by all parties.
- Liasing with your mortgagee, if applicable, to have the property transferred.
- Attending settlement.
Off-the-plan Property
Buying property ‘off the plan’ means buying property that has not yet been built. You may also be entitled to government grants and concessions if you are a first home buyer.
Contracts for off the plan properties are often complex and lengthy so it is important that you obtain legal advice from a property lawyer experienced in off the plan conveyancing.
The special conditions attached to a Contract vary from property to property. At Castro Legal, we will provide you with detailed advice on common conditions of off the plan Contracts including:
- What date will settlement occur
- The date the property is required to be constructed by (usually known as ‘Sunset Date’)
- Your rights if construction is delayed
- What happens to your deposit if the Developer cannot complete construction of the property
- Your rights if there are defects in the property
- Whether the Developer can change the design of the property and if your consent is required
- Whether you can on-sell the property to someone else during the construction period
In November 2015, laws were introduced which gave greater legal protection for off the plan property purchasers. In particular, it prevented developers from unreasonably rescinding off the plan Contracts under the Sunset clause.
A Sunset clause allows the vendor or purchaser to rescind the Contract if construction of the property is not completed by a particular date and the title of the property has not been created (Sunset Date).
Previously, there were concerns that some vendors were deliberately delaying completion of the property so that they were able to rescind off the plan contracts and sell the properties at a higher price.
Under the new protections, a vendor must give the purchaser notice prior to rescinding a Contract under a Sunset Clause and provide reasons. The onus is on the vendor, rather than the purchaser, to prove in Court that the delay was beyond their control.
Auctions
If you are interested in a property which is being sold at auction, you should
- Seek a lawyer to review your Contract
- Organise your finances and make sure you have the deposit ready on the auction day
- Arrange a building inspection report and /or pest inspection report and/or strata report. (Optional)
It is important to ensure that a property lawyer has reviewed your Contract before attending the auction. The reason for this is that if you buy at auction, you waive your right to the usual 5 day cooling-off period.
If you are the successful bidder at the auction, contracts are signed and exchanged and the deposit is paid on the same day. The exchanged Contracts will be sent to your lawyer and they will start the post exchange conveyancing process.
The team at Castro Legal can review your Contract, provide you with advice and request for amendments to be made to the Contract to ensure that in the event that you are the successful bidder, all terms and conditions of the Contract have been negotiated and you are happy to proceed with buying the property.
We offer fixed fees for Contract reviews with a turn around time of up to 2 business days. We also provide urgent Contract reviews for an additional fee. If you have found a property that you are interested in buying, contact us today.
Guarantors
A Guarantor is an individual providing the equity in their property as additional security if the borrower defaults under the terms of the loan contract.
The guarantor makes a promise or guarantee that if the borrower defaults on their loan, the guarantor will pay off the debt owed to the lender.
A common example is a parent acting as a Guarantor for their child’s property.
It is a common requirement of banks and financial institutions that a Guarantor get independent legal advice and obtain a Certificate of Independent Legal Advice from a lawyer before they sign a Guarantee regarding a home loan. This is to ensure that the Guarantor understands and is aware of their obligations.
At Castro Legal, we can review your guarantee documents and provide you with advice on the legal implications and your obligations as a Guarantor, and if we are satisfied that you understand the documents, we will provide you with a Certificate of Independent Legal Advice.
Castro Legal generally charge a fixed fee for providing a Certificate of Independent Legal Advice. If the advice is over and beyond the certificate required, an additional fee will incur.
Granny Flat Agreement
A granny flat interest is an agreement for accommodation for life.
Granny Flat Agreements are now increasingly becoming more common as more elderly people are seeking to sell or transfer their property to their children in exchange for the lifetime right to live in the property and still receive pension entitlements.
It is recommended by Centrelink to have a written legal document in place to ensure that the agreement between the parties is evidently recorded in the Granny Flat Agreement.
At Castro Legal, we can assist you with drafting up the Granny Flat Agreement and ensure that it meets the Centrelink requirements.
Buying and Selling a Business
Here at Castro Legal, we understand that buying or selling a business is a big decision and an important milestone for most people. It is important to ensure that the contract is properly drafted and the agreed terms are documented to minimise issues that may occur after settlement. We offer a high level of experience with business transactions in New South Wales and have represented both buyers and sellers of businesses. This brings peace of mind to our clients.
We can provide assistance with:
- Negotiating the terms and heads of agreement
- Reviewing the sale of business contract
- Employment contracts (if there are current employees)
- Assignment and transfer of the lease premises
- Conducting due diligence before settlement
- Preparing and attending to settlement and assistance with handover
We can provide assistance with:
- Negotiating the terms and drafting the heads of agreement
- Drafting the sale of business contract and negotiating the terms of sale
- Employment issues (if there are current employees)
- Transitioning supplier contracts
- Transferring the lease
- Preparing and attending to settlement
Commercial and Retail Leases
Commercial and retails leases are more complex than residential leases as it is tailored to each premises, so it is important for both landlord and tenant to obtain legal advice. We offer a high level of experience with lease transactions in New South Wales and have represented both landlord and tenant in lease matters.
A commercial lease is for a commercial space, such as a factory or office space and is entered into by a business owner (tenant/lessee) and the owner of the premises (landlord/lessor).
A retail lease is for a retail shop business and is entered into by a business owner (tenant/lessee) and the owner of the premises (landlord/lessor). In New South Wales, the laws that govern leases is the Retail Leases Act 1994.
We can assist you with:
- Drafting retail and commercial leases
- Review and advice on retail and commercial leases
- Negotiation of terms of retail and commercial leases
- Advice on lease dispute
- Registration of lease
Frequently Asked Questions
Conveyancing is the area of property law that deals with the transfer of real estate between sellers and buyers.
Although it seems quite straightforward, property law can be quite complex and conveyancing has to consider issues such as contract terms and conditions, mortgages, covenants, easements, caveats, the type of property title, the type of tenancy, local council regulations and zoning to name just a few.
- Generally the process begins with the drawing up of a Contract for Sale. The Contract will include things such as:
- the street address and legal property title details
- the length of time between signing and completion of the contract
- what’s included or specifically excluded from the sale
- special conditions specific to this particular property
- The purchaser needs to get legal advice, review the contract, arrange inspections and start making loan arrangements before anything is signed.
- The contract is signed by both parties, and may be immediately binding, depending on the circumstances of the sale. You may however, have a cooling off period available, or be able to withdraw from the contract under certain conditions, so it’s important that you know the exact terms and conditions written into the contract
- There is a set length of time between the contract becoming binding and the contract being settled or completed. In this time the purchaser of the property has a lot to do including conducting various checks on the property, paying stamp duty, organising insurance and getting any loan arrangements in order, and the seller of the property should be making arrangements with their bank to have any mortgage discharged as well as making plans to move.
- Before settlement, adjustments to the purchase price are agreed upon between the parties to cover council and water rates as well as other costs which may be allowed for in the contract.
- On the day of settlement everything has to be in place. The purchaser or the incoming mortgagee has to show up with the funds, and the seller or outgoing mortgagee has to turn up with the property title and the document/s needed to release the mortgage. Everything is handed over including the keys and the property is considered settled.
- After settlement the new owner needs to be registered as the owner on the title, and various government bodies need to be informed of the change in ownership.
E-Conveyancing is the process of settling a conveyancing transaction through an online electronic network. From 1 July 2019 all property settlements are now being done electronically online.
Lawyers, conveyancers and financial institutions enter a secure, online workspace (known as PEXA) where they can interact and transact together online.
Within that digital environment, information can automatically feed in from the original source and can populate all documentation while the system cross-checks that information.
Documents are created, signed and lodged within the online environment, and parties complete all necessary steps to settle the transaction within that online environment.
The highly publicised case of the former Masterchef contestant who had $250,000 stolen after a hacker intercepted the settlement funds while completing the transaction through the online platform PEXA sent alarm bells ringing across Australia.
Fortunately, the Masterchef contestant was able to recover her funds as the bank had frozen the funds and the shortfall was repaid by PEXA.
As a result of this incident, PEXA have now introduced the residential seller guarantee which provides protection to sellers in the event of certain kinds of fraud and offers a claim of up to $2 million.
E-Conveyancing saves time. It will replace many of the paper and manual processes traditionally involved in property transactions, for example if you are the seller, the Transfer document is now signed electronically by your lawyer or conveyancer on your behalf so you will not need to make time to go into their office to sign the Transfer.
E-Conveyancing helps reduce error. With e-Conveyancing, the system cross-checks the information that is populated onto the online platform. Any issues will prompt the solicitor/conveyancer and financial institution to rectify the problem before settlement can proceed. For example, the funds required for settlement are not balanced against the settlement statement. This reduces the risk of errors giving you added certainty that the settlement will be successful.
You get your money faster. If you are the seller, funds are paid instantly into your account on the day of settlement. The traditional process was to obtain a cheque from settlement and getting that cleared by the bank. With e-Conveyancing you have access to your funds on the same day.
Lastly, with e-Conveyancing it is instant ownership. Documents are registered with the Land Registry instantly meaning that you become the owner on the day of settlement. Traditionally, documents were required to be lodged with the Land Registry after settlement and it would take 1-2 weeks for the transfer of ownership.
Many people get confused between a conveyancer and property lawyer. They are both qualified to act for you in a conveyancing transaction, so what’s the difference and who should you choose?
The main difference is that a conveyancer only specialises in the process of conveyancing, being the transfer of ownership of property between parties, and a lawyer has a broader range of legal services that they can provide in addition to property law and conveyancing.
Some key points to help you decide on who to use for your conveyancing transaction:
Specialist advice
Lawyers can practice in many areas of law and are not only limited to conveyancing and property law. So if your conveyancing transaction involves other matters eg. Family Law matters, Deceased estates or changing your Will, a lawyer will be able to assist you.
Legal issues
If complex legal issues arise in your conveyancing matter, a lawyer will be able to provide you with legal advice and guidance which a conveyancer cannot do. If the work extends beyond the scope of conveyancing work, a conveyancer will need to refer your matter to a lawyer.
Protection
Lawyers are required to take out insurance in the event that they are negligent. This is an advantage because if they make a mistake in the conveyancing transaction, you may be protected by their insurance cover.
Legislation
As laws are constantly changing, you may find it more beneficial to hire a lawyer who will have an updated knowledge and better understanding of property laws.
Cost
Most lawyers and conveyancers charge a fixed conveyancing fee. Conveyancers generally offer a cheaper conveyancing fee but are only limited to providing conveyancing work. They cannot provide advice in complex legal matters.
If you want to have peace of mind that if something goes wrong with your conveyancing matter, you are adequately protected and you have a qualified legal professional to give you advice and guidance, you are better off hiring a lawyer.
From the 1 August 2016, the NSW Government introduced new conveyancing rules which require lawyers and conveyancers to verify the identity of their clients and to ensure that the client is a legal person and has the right to enter into the conveyancing transaction.
The process involves a face to face interview with a lawyer or an identity agent where your original identification documents are verified and certified.
You will need to provide 2 original and current identification documents. As an indication, you will generally need:
- An Australian passport or a foreign passport;
- Plus an Australian driver’s licence or Photo Card;
- Plus a change of name or marriage certificate (if necessary).
We will provide you with a list of identification documents which are acceptable.
Your identity will be verified by one of the following:
- A lawyer at Castro Legal;
- An identity agent at your local post office; or
- An Australian consular officer (if you are overseas)
The verification of identity will need to be completed prior to settlement.
We will be in contact with you to organise a time to have your identity verified with us. Alternatively, we may organise a Verification of Identity form which you can take to your local Australia post office.