What is conveyancing?

When buying or selling real estate in New South Wales, you will have to sign a contract for the sale of land. The legal work involved in preparing the contract for sale and other related documents is called conveyancing and conveyancing also refers to the legal process through which ownership of land is transferred.

When selling a property, conveyancing procedures involve putting the property up for sale, completing and executing the relevant documents, and handing over the property to the purchaser after the sale. The conveyancing process can appear to be straightforward from the outset, but it can tend to become quite complex, especially when legal or transfer challenges ensue. This is why most people prefer to use solicitors in conveyancing.

The Contract of Sale

The vendor must have the Contract of Sale prepared and available for inspection before offering a
property for sale. Our conveyancing solicitor can assist with the preparation of the contract.

The contract is a legal agreement between the two parties to the conveyancing transaction - the seller and the buyer. The contract contains the terms and conditions of the sale. Any fittings being soldwith the property such as curtains, blinds, light fittings, awnings, air conditioner or TV antenna should be listed in the contract to avoid disputes at, or after, settlement.

The contract must have attached it various certificates including:

• a ‘Section 149’ certificate from the local council, detailing zoning and other information
• a sewerage diagram
• a copy of the title folio from the Land and Property Information NSW
• copies of all documents creating easements or restrictive covenants
• a cooling-off statement has to be provided
• a notice directing parties to the Conveyancing Act 1919 (Section 52A) and the Conveyancing (Sale of Land) Regulation 2000
• if it is a strata unit, copies of the folio of the Register for the lot and common property
  and a copy of the strata plan.

If the vendor does not attach certain information, the buyer may be entitled to rescind or
cancel the contract within 14 days of exchange. Further, the buyer may also have the
right to rescind the contract, in certain circumstances, prior to completion, if the seller breaches certain warranties.

The Exchange

The contract is prepared in duplicate by the seller’s conveyancing solicitor. After it is signed by the seller, a copy is forwarded to the buyer’s conveyancing solicitor for approval and, if approved, is then signed by the buyer. The exchange of contracts is then carried out. The contract is dated at the exchange and thereafter the seller and buyer are bound by the contract.

The transfer

When going through the process of transferring real estate, one should be careful to ensure that the property is free of any interests. If the existing homeowner has taken out a loan on the property, the bank can have a registered interest in the form of a mortgage. This can also apply if the property has been used as security in a business transaction, or if it forms part of a guarantee extended to a third party. A thorough conveyancing process ensures that all background checks are completed satisfactorily. These background checks establish that the property is free from any caveats, easements or covenants.

When the transfer takes place, the documentation registers the new owner with the Land Titles office. It is important to note that the actual transfer is not complete until a new Certificate of Title is issued in the purchasers' name. The conveyancing process continues after the transfer, and this is when complex legal and procedural problems can potentially arise. In cases where tax/liability/survivorship issues are involved, it is important that you have adequate background knowledge and fluency to be able to adequately address any problems. This is another reason why it is generally considered better practice to use a conveyancing solicitor.