Property and Conveyancing
Buying and selling property can be one of the most stressful points of your life. Even if you have bought and sold properly previously you need an experienced solicitor to assist.
We encourage clients to call us if they have a concern, however large or small that it might be. We have dealt with most concerns at some time so can quickly and accurately provide guidance.
Once you have found a property to buy you will need to be aware of the different requirements when buying at either auction or under private treaty.
Buying at auction
In Sydney’s skyrocketing property market properties are often offered for auction. Receiving legal advice prior to the auction is important as the contract may contain conditions you need to be aware of which, if you’re not, can leave you vulnerable to issues. These can include restrictions on what you can do with the property or, for example, an inconveniently located or connected sewer main which might limit what you intend to do with the property.
You should also be aware that unless negotiated prior to the auction you are required to pay a 10% deposit at the fall of the hammer. So, if you only want to pay a 5% deposit this needs to be raised with the Vendor’s solicitor PRIOR to the auction. The contract might also have a completion period which doesn’t suit you. If you have not already sold, we would recommend requesting a 13 week completion so that you have the chance to avoid the need for bridging finance.
Over recent years real estate agents are favouring other types of auctions, without a formal auction on the day. These include Dutch or silent auctions whereby you are required to have a signed contract with your best price, deposit cheque and Section 66W Certificate all supplied in an envelope to be opened by the agent or vendor, making the contract unconditional. We have assisted many clients with this type of auction. Often my experience has been the element which has got the client’s offer over the Line.
Buying under private treaty
If a property is not being auctioned it is offered for sale by private treaty. Again, with private treaty there are two methods of sale. The first is a Cooling off Contract which you sign after your offer has been accepted. Generally, as a buyer, you pay a deposit of 0.25% of the purchase price and then have five days to finalise the contract and finance. The advantage to a buyer with a Cooling off Contract is that only the buyer can change their mind, not the seller. If the buyer changes their mind for whatever reason they will lose 0.25% of the purchase price.
During the cooling off period you obtain pest and building reports if you are buying a house or a strata report if you are buying a unit. It is becoming more common for the seller to have obtained these prior to the property going on the market. We recommend that you ask the real estate agent if a report is already available. If reports are available and you are the successful purchaser we recommend that you contact the building inspector(s) and separately purchase the reports to maintain legal liability between yourself and the inspector. The inspector is not liable to third parties on the initial reports obtained by the seller. Under a Cooling off Contract, if the reports are not available we can put you in touch with an inspector so that you can purchase your own Pest and Building Reports. We can also order a Strata Report direct with our Strata Inspector. Whilst these reports are comprehensive we have reviewed many hundreds of them so can quickly identify whether the inspector has any concerns.
The other way to purchase is to negotiate the sale price and pay a holding deposit. You then do your due diligence before exchanging with a Section 66 W Certificate. Due diligence is the review of reports, finance and the contract which may result in changes to the contract, for example the amount of the deposit, the lengthening or shortening of the completion period, extra inclusions, changes to special conditions and so on. Once you are satisfied and have your unconditional finance approved in writing the contracts are exchanged.
Recent conveyancing changes have resulted in all clients having to perform an ID check and sign a Purchaser Declaration as to their residency status for tax purposes. This can either be done by J.H. Fisher & Sons or through a participating Australia Post outlet. We can provide guidance in this respect and also advise which documents are required to be certified. The Purchaser Declaration needs to be signed in front of a Justice of the Peace or Solicitor and again we can assist if required.
As a result of recent stamp duty changes some first home purchasers will qualify for the stamp duty concessions on purchase prices between $650,000 and $800,000. We can provide advice on buying with these concessions also.
When it comes to selling most people are doing so for a purpose, be that upsizing or downsizing from their existing residence. Some people will only sell once they have secured their new property, others sell beforehand. If you are selling before finding you new place, we recommend delaying settlement to reduce the likelihood that you will have to move more than once.
The requirements for the documentation you need when you sell change over time. To provide the best advice to our clients we ensure that our knowledge of these changes remains current. For example, if you have a swimming pool you must have a certificate of compliance or a certificate of non-compliance. If you do not have this certificate the purchaser has certain rights under the contract. Additionally, since 1July 2017 if your property sells for more than $750,000.00 you need a Clearance Certificate for the Foreign Residents Capital Gains Withholding Tax. If you do not have this then 12.5% of the sale price will go to the ATO. As you can see, the right legal advice can save you many thousands of dollars.
When you put your property on the market and engage us to act for you we will ask you specific questions about your property to help prepare the contract. Any work that you have carried out to your property may need a Final Occupation Certificate if it was required under your development application. Some sellers are not aware of this and need to play catch up to have the property ready to sell. Inclusions and exclusions in the sale is also an area we will discuss in preparing the contract.
As with buyers, sellers are required to perform an ID check. This needs to be a person-to-person ID check and can either be done with us at no additional charge or at a participating Australia Post outlet where there is a fee involved.
We also specialise in wills and estates
Visit J.H. Fisher and Sons at
205 Concord Road, North Strathfield NSW 2137
Meet Andrew Fisher
Andrew is the third generation principal and owner of J.H. Fisher and Sons. With 25 years of personal experience as a solicitor Andrew is well placed to advise on all matters in the areas of property law, wills and estates.