Conveyancing is the process of transferring legal ownership of real property from one legal entity (the vendor) to another (the purchaser). There are a number of legal processes involved in transferring a property, which are set out in legislation and common law. There are also a number of investigations designed to protect your interest, such as searching the property title to ensure that nothing adversely affects your right to enjoy the property.
Your conveyancer will undertake the series of tasks that are required to effect a smooth transition of ownership, including:
While a residential settlement might look simple on the outside, there are a number of detailed steps that must be followed for the matter to progress smoothly. In addition to the legislative requirements detailed elsewhere in this section, your conveyancer will advise you on all aspects of the transaction.
Depending on the situation, this might include giving advice on your eligibility for the possible Stamp Duty exemptions; advice on your responsibilities in relation to insurance on the property, recommendations to consider Title Insurance, the implications of buying as joint tenants or tenants-in-common, any extra considerations that arise when buying a community title or strata title property and any number of other things that may apply to your particular transaction.
Business settlements are typically quite complex and require attention to a number of considerations above and beyond those that arise in a residential transaction.
Where you are selling a small business (defined as one valued at $300,000 or less, excluding stock), you must provide a Form 2, which details the financials of the business for the past three years, information on stock and plant relating to the business, staffing arrangements and more. Your conveyancer will complete this as part of their service.
If you are buying a small business, your conveyancer will also advise you on the impact of any lease or tenancy arrangements, the business structure, registration of a business name and recommend independent financial advice where appropriate.
Buying and selling commercial property brings with it a number of things to consider. Are there ongoing costs associated with the property and have those been disclosed correctly? Is the site approved for the intended use? Where you are also taking over a pre-existing lease, the lease should be scrutinised for its terms and conditions.
While we can’t provide you with independent financial advice, we are experienced in commercial settlements and will go over your paperwork with an eagle eye for the traps that can arise.
In some circumstances, a private mortgage arrangement between buyer and seller can be an elegant solution to the problem of finance. In this circumstance, the seller extends finance to the buyer to allow the buyer to purchase the property, and an agreement is drawn up between the parties. Arranging things this way may allow both parties to achieve their end goal, but the agreement must meet legal criteria.
Alternatively, you may elect to use a private lender to purchase your property, rather than a traditional bank. O’Hallorans cannot give you independent financial advice, but we will work with you to liaise with the lender and make sure that the documentation is completed correctly to allow your settlement to go through smoothly.
Rural land means land which is used, or apparently intended, to be used for profit in the grazing or raising of livestock, poultry, bees and other living creatures, or for viticulture or other plant growing. Even land which is not currently used for these purposes may fall under this definition.
Buying rural land raises a number of issues, and you are well advised to speak to a specialist before signing on the dotted line. For a rural property to be viable, it is worth making sure that the purchase comes with the correct water entitlements, that council approval exists for the proposed use, and the boundaries are correct. Easements and rights of way can also be an issue with rural land and are worth checking carefully.
Subdividing land can be an onerous process. Whether you are chopping your block in half or planning a multi-allotment development, there are a number of planning and development requirements to be met. Applications must be carefully prepared and all necessary paperwork completed before submitting the application to the Department of Planning, Infrastructure and Transport.
A number of fees are involved, and these vary depending on the subdivision. An application fee is payable. Fees to SA Water may be necessary. If the application comprises five or more allotments, you will need a surveyor to sign off on your plans. At O’Hallorans, we will go through your proposed subdivision with you and advise as to the likely costs and processes involved, and guide you through what can be an extremely complex process.
When you are selling a property, you must provide the buyer with a comprehensive disclosure statement that gives them detailed information about the property they are purchasing. For residential property, the required disclosure statement is a Form 1. A Form 2 is required where a business is being sold and contains additional disclosures. It is extremely important that the Form 1 or 2 is prepared and served correctly, as a defective form may mean that the purchaser can renege on the contract before settlement. The provision of a disclosure statement is a legislative requirement.
O’Hallorans provide a comprehensive Form 1 and 2 preparation service, and undertake regular training in order to ensure that their team is up to date with any changes to the Forms.
If you have chosen to sell your property privately – that is, without a real estate agent – you will need to have a contract prepared setting out the terms and conditions of the sale. It is important that the contract is clearly drafted and complies with the legislative requirements set out in the Real Property Act 1886. It is also important that it includes any special conditions required by either the seller or the buyer and that both parties understand these terms.
Your conveyancer is qualified to prepare private contracts, and will spend time with you ensuring that the conditions of sale that you and the buyer have agreed are reflected accurately in the contract.
When you are selling a property, you are required by law to provide a vendor disclosure statement, or Form 1, which must include a number of prescribed searches of government and council bodies. If you are buying a property, it is also strongly recommended that you undertake these searches to ensure that the seller is making accurate disclosure.
There may also be instances where you wish searches to be undertaken; for example, prior to selling to see whether or not there is a caveat on your title. At O’Hallorans, we can advise you what searches are required and complete that service on your behalf.
Regarding all dealings in South Australia including buying or selling property, a Verification of Identity process must be undertaken by a Legal Practitioner, Registered Conveyancer or approved Verifier’s Agent. The process requires you to have a face to face interview with the Verifier at which identification documents are produced. Several categories of document are nominated in the Verification of Identity Policy, but an Australian passport and driver’s licence are the preferred documents where available.
When you choose O’Hallorans for your conveyancing transaction, we will provide you with a written explanation of this policy, including a list of the allowed documentation.
Looking to sign a lease over a commercial premises, or rent one out? A commercial lease is a significant decision, and can affect the viability of your business. Check the duration of the lease and whether it is possible to renew, who is responsible for ongoing costs such as council and water rates, whether there is a clause that deals with conflict resolution and many other considerations.
Commonly, both parties are responsible for splitting the cost of preparation, and it is well worth getting detailed advice on the terms and conditions before committing yourself. We are experienced in preparing lease documentation, or advising on pre-existing leases, so talk to us before you commit to the contract.
Rural leases are often, although not always, undertaken as a private arrangement between lessor (the landholder) and lessee (the person leasing the land). Even when negotiations are informal, a written lease should be drawn up setting out the terms and conditions of the lease. Rural leases sometimes require more detailed terms than a residential lease, as the landholder wants to ensure that the land is maintained appropriately and retains its value.
Stocking rates on land that holds livestock, or cropping density on agricultural land, may be agreed upon between the parties. To ensure that the contract reflects the agreement between the parties, you are advised to get a professional to help; that’s where we come in. With extensive experience in rural leases, we will spend the time to make sure that the lease is right.
A caveat allows an ‘interested party’ to record that interest against a property title. A caveat acts as protection, so the lodgement acts as protection against it being sold without the interested party receiving a benefit.
A caveat can be lodged over a property for a number of reasons. In South Australia, a caveat may only be lodged where you have an interest in the land which is the subject of the caveat. You may not, for example, lodge a caveat over someone’s house because you believe that they owe you money from a business transaction. If you lodge a caveat without appropriate interest, you may be liable to pay compensation to the property owner if they suffer loss.
We can advise you on whether you have a suitable interest to lodge a caveat, and complete the paperwork and lodgement process necessary to make that caveat valid.
The Personal Property Security Register (PPSR) allows people to register an interest in property other than real estate. For example, a car financing loan that is secured by the vehicle (that is, if the loan is defaulted upon, the vehicle will be repossessed) is a personal property security interest.
A Notation of Interest acts in a similar way to caveats over property; once an application in the approved form is submitted and the steps followed correctly, the Registrar issues a verification statement and the interest is entered. The benefit of this is that, should the party against whom the interest is held become insolvent, the interest survives that bankruptcy. It also means that you are protected against a later interest if yours is registered first. The PPSR is online and searchable.
It is important that the application is made correctly and the steps followed to make sure that the interest is registered; we can help with this. If you want to search the register for a previously-registered interest, we can perform that search for you as well.
A deceased estate presents a number of unique problems. Where the owner of a property has died, the property cannot be sold without probate being granted. If you are the executor, or one of the executors, of a deceased estate you wish to sell, then contact us to ensure that the proper processes have been completed to allow you to deal with the property. If a relative has died intestate, be aware that the process of appointing an executor can be even lengthier. O’Hallorans can advise you as to the steps necessary to allow you to deal with the property.
If you are buying a deceased estate, talk to us before signing a contract which might be invalid if the steps haven’t been correctly followed.
A property may be transferred between spouses (including de facto spouses) without incurring stamp duty as you would if you were selling it to another party. However, there are some conditions to be met, and it is best to check that your transfer meets those conditions rather than risk being socked with a tax bill that you didn’t expect.
There are a number of steps involved in a matrimonial transfer, including completion and lodgement of the required paperwork, and liaising with financial institutions where required. Your conveyancer can perform these services for you.
Electronic Conveyancing (E-Conveyancing) is fast becoming the preferred method of transferring property in Australia. As a member of Property Exchange Australia (PEXA), O’Halloran’s are embracing E-Conveyancing and have already commenced processing settlements electronically; a faster, paperless way to transfer property.
O’Hallorans also provide many other conveyancing services, such as, retail leases, grant of easements, encumbrance preparation and community title applications. The services that we are able to provide are extensive.