FREQUENTLY ASKED QUESTIONS
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+ What is a Conveyancer ?:
When undergoing a conveyancing transaction a Certified Practicing Conveyancer is able to assist you. A Certified Practicing Conveyancer undergoes certain education and practical training before being entitled to hold a conveyancer’s licence. Further, a Certified Practicing Conveyancer must hold Professional Indemnity Insurance and must complete a minimum amount of training each year to ensure that each Conveyancer remains up-to-date with any changes to the conveyancing profession. B & M Property Transfers is a member of and has the support and backing of the only professional body representing the conveyancing profession in NSW, the Australian Institute of Conveyancers NSW Division.
+ Why should I use a Conveyancer ?:
Buying or selling property is one of the biggest financial transactions or your life. Due to the financial and legal aspects of transferring property, the consequences of making a mistake can be both costly and heartbreaking. By having a licensed conveyancer take care of your property transfer, their qualifications and experience can help protect your assets. A licensed Conveyancer has an in-depth understanding of the law concerning property transactions, is required by law to carry professional indemnity insurance and fidelity insurance, and unlike certain solicitors that offer conveyancing, can focus solely on property transfer instead of other legal matters.
+ What is the cooling off period and how does it affect me ?:
A cooling off period is the right of a purchaser of property to cancel the agreement within 5 working days. It offers some protection to purchasers that may have rushed into a contract to purchase property and can be used to finalise financial arrangements and to carry out building, pest and strata inspections. Canceling the agreement (or rescinding, as it is known) will cost the purchaser 0.25% of the total purchase price. The cooling off period does not always apply (at auction, for example) and can be waived providing a 66W certificate is signed by a conveyancer who has briefed his or her client with regard to the implications involved of waiving the cooling off period.
+ What is a disbursement ?:
A disbursement is one of the expenses incurred during the process of searching and obtaining a certificate from local government authorities or local councils etc. We will outline all anticipated disbusements in a Costs Agreement which will be provided to you.
+ What happens if either party cannot settle on the due date ?:
The vendor or purchaser can issue a 'Notice to Complete' which means the vendor or purchaser has 14 days (including weekends and public holidays) to settle the matter. If left unsettled, the purchaser has the right to terminate the contract and is eligible to receive their deposit back. The purchaser may also apply to the Court to have the vendor complete the agreement and hand over possession. The vendor is entitled to charge the purchaser interest for the number of days settlement is delayed. The contract usually stipulates the applicable interest rate. When a 'Notice to Complete' is issued, the vendor may terminate the contract after the 14 days has expired and keep the deposit, and can legally place the property back on the market to sell.
+ What happens at settlement time ?:
Settlement is the finalisation of the sale or purchase process. There are usually four parties involved - the vendors and purchasers conveyancers and the banks for the vendor and purchaser. On settlement, the purchaser's bank will exchange cheques as per the instructions of the buyer's conveyancer and in return, receive the Certificate of Title and 'discharge of mortgage' (if applicable) from the seller's bank. If prior to settlement the property in question has been damaged, there is a sufficient amount of time to take care of discrepancies prior to settlement. Once the settlement date arrives, the keys can be handed over to the purchaser and the deposit is released (from trust) to the seller. At this stage, the buyer's bank registers the change of title and mortgage, and notifies authorities (such as the water company) of the change..
+ Who notifies the authorities that I have purchased a property ?:
When your transfer papers are lodged for registration after settlement, the council and water provider are automatically notified of the new purchase. Other providers, however, will need to be notified by the purchaser.
+ What are the Residential Model By-Laws ?:
+ What are the Commercial & Retail Model By-Laws ?:
+ What are the Mixed Use Model By-Laws ?:
+ What should I look for when buying a Strata Unit ?:
If you are interested in buying a strata unit, it is essential you look at the records of the owners corporation and know as much as you can about the maintenance of the building. Particularly, you should consider how much it may cost and whether there are signs that money may need to be spent soon. We can arrange this for you. There are companies which specialise in inspecting the books and they know what to look for (we call it a Strata Report). You can inspect the records yourself (upon payment of the necessary fees) and the owners corporation must make these records available: the strata roll (shows: who owns each unit, mortgagees and others who have an interest in lots, general information about the strata scheme, the name of the managing agent, insurance details, the by-laws and the unit entitlements for the scheme and each lot) general records, such as notices served about disputes or required by legislation, orders, minutes of meetings, accounting records, financial statements, correspondence received and sent, notices of meetings, details of proxies, voting papers plans, specifications, certificates, diagrams and other documents if supplied by the original builder at the first annual general meeting the certificate of title for the common property the last financial statements current insurance policies and the receipt for the last premium paid other records held by the owners corporation, and records or books of account kept by a strata managing agent.
+ What does "buying a unit off the plan" mean ?:
Sometimes strata units are advertised for sale even before the building has been constructed. Sometimes even before construction has commenced. The design of the building and sketches of its final appearance may be included in advertising material well before occupation is possible. Usually a contract to purchase is signed, but the date for completion of the contract will not be until the building is completed and the strata plan is registered. The purchaser usually pays a deposit (perhaps ten percent of the agreed price of the unit) and the balance is paid when the contract is 'settled' upon the building's completion. There may be substantial demand for apartment accommodation in popular areas of NSW and it is sometimes easy for developers to market such strata units months before building work is completed. Stamp duty payment may be deferred by up to 12 months (meaning that you have up to 15 months). The NSW Government also provide stamp duty exemptions or discounts for off the plan apartments. Your conveyancer can advise you what exemptions or discounts may be available to you. The conditions of the contract should be closely checked. We can provide you with comprehensive advice on the benefits or restrictions provided by the terms of the contract. For example, consideration should be given to whether there are any penalties for withdrawing from the contract. Other questions you might need to ask could include: Can I make changes to the finishes in the kitchen and bathroom? Can I select appliances such as stoves and dishwashers and items such as floor and wall tiles? Can I visit the site during construction? If the building is finished earlier than expected, has finance been suitably arranged? What are my rights if construction is delayed? Is my deposit secure if the building doesn't proceed? Can I on-sell during the construction period?
+ What is a covenant ?:
Covenants are restrictions on the property that are part of the title. Often houses in sub-divisions have them as do property that is sub-divided off a main part. Examples would be not to build any structure more than 50' high, no fences more than 4 feet high, the sub-division must approve any building permits. There are others such as to restrict the sale to a specific type of person. In cases such as restriction of sales, the courts may very well strike them down as being prejudiced and not affording equal opportunity, but most of the reasonable ones will be enforced.
+ What is a Certificate of Title ?:
A certificate pursuant to the Real Property Act that records details in relation to specified land including ownership, boundaries, limitations of title and mortgages. The original of the certificate of title is held by the Lands Titles Office, or such namesake, and may be in an electronic form. A copy of the certificate is delivered to the registered proprietor or other person entitled to receive it.
+ What is Community Association ?:
The corporation automatically created on the deposit of a community plan. The community corporation manages the common property within that plan and facilitates various matters of common interest for the residents of the community lots. The owners of the community lots are its members.
+ What is the Community Lot ?:
A defined piece of land (not being common property or a development lot) within a community plan.
+ What is a Conveyancer ?:
A person approved to advise on and prepare documents to transfer, or convey, real estate. The term "Conveyancer" includes a property solicitor and Licensed Conveyancer.
+ What is a Cooling Off Period ?:
Withdrawing from, or rescinding or terminating a contract under a statutory right given by a relevant Act. In New South Wales, the Conveyancing Act provides for all residential properties to have a cooling off period of 5 business days, unless sold on the day of Auction. Whilst provided for in legislation, a purchaser should check with the Vendor or the Vendors Agent if the property they are interested in comes with a Cooling Off Period.
+ What is a Development Lot ?:
A defined piece of land within a strata or community plan that is neither common property nor a community lot. Not all community plans include development lots. Development lots are subsequently converted into one or more community lots plus (in most cases) additional common property.
+ What is an Easement ?:
A legal right to use a designated part of someone's land for a particular purpose. Types of easement include a right of way (to pass and repass to access adjoining land) and a right to use and maintain sewerage pipes.
+ What does fee simple mean ?:
The highest interest in land (whether built on or not) that can be owned by a person other than the Government.
+ What is a fixture ?:
This term has a highly technical legal definition when used in a contract for the sale of land. In simple terms, it describes something that has been deliberately affixed to the land (or some building on the land) for the better use or enjoyment of the land, not of the fixture: hence, difficulties arise in classifying equipment such as air conditioners, dishwashers and clothes driers. Any item that may be a fixture should be specifically referred to in the contract to avoid disputes.
+ What is Joint Tenants ?:
One of the two main ways in which two or more persons may own the same parcel of land (the other being tenancy in common). The principal features which distinguish a joint tenancy are: * unity of time, title, interest and possession; and * the right of survivorship. Under which the interest of a joint tenant passes automatically upon death to the surviving joint tenant(s).
+ What is Land ?:
The term to describe land whether built upon on not. By law, land defined by a certificate of title includes all buildings, fixtures and improvements on the land.
+ What is Land and Property Information (LPI) ?:
The office of the Registrar-General (a public officer) that holds the records of all non-government land. All transfers of land must be registered there. Now under the umbrella of NSW Department of Finance and Services. Their website is www.lpi.nsw.gov.au .
+ What is a Lease ?:
An exclusive right to occupy land (whether for residential or other purposes) for a fixed period (see also "License").
+ What is a License ?:
A non-exclusive right to occupy land (see also "Lease").
+ What is a Lot ?:
An abbreviated reference to a strata, community lot or a development lot (see "Community Lot" and "Development Lot"). Is is also the description of a parcel of Land in a Deposited Plan.
+ What is the Transfer ?:
Formerley known as the Memorandum of Transfer. It is a document signed by the vendor and the purchaser (not being the contract) that, when registered at the Lands Titles Office,(or similar namesake) legally changes the ownership of the land.
+ What is a Mortgage ?:
A loan for which land is used as security for repayment.
+ Who is the Mortgagee ?:
A lender whose debt is secured over property.
+ Who is the Mortgagor ?:
The borrower who uses property as security for repayment.
+ What is the Owners Corporation ?:
The corporation automatically created on the deposit of the strata plan. The strata corporation manages the common property within that plan and facilitates various matters of common interest for the residents of the strata units. The owners of the strata units are its members.
+ Who is the Registered Proprietor ?:
The person whose name appears on the certificate of title as the owner of the land.
+ What is a Right of Way ?:
A right to use a designated part of someone's land to access adjoining land. It can also be refered to as a Right of Carriageway (for motor vehicles) or a Right of Footway (pedestrian access).
+ What is a Section 66W Certificate ?:
This is the Certificate that a Conveyancer signs on behalf of a Purchaser which will waive any Cooling Off Period under the contract.
+ What does Settle mean ?:
To fulfill the terms of the contract of sale. This involves handing over the purchase price in exchange for a memorandum of transfer that has been properly signed by the vendor and physical and legal possession of the land in accordance with the contract.
+ What does Settlement mean ?:
The time at which the parties settle. (see "settle").
+ What are Special Conditions ?:
A clause or set of clauses in a contract of sale that must be satisfied or waived before the person for whose benefit the condition was inserted can be forced to settle on the contract.
+ What is a Strata Plan ?:
A plan under the Strata Schemes Management Act that divides a parcel of land into strata units and common property. Note that a parcel of land may also be divided into strata by a community plan under the Community Titles Act (see "community plan").
+ What is Tenancy in Common ?:
One of the two main ways in which two or more persons may own the same parcel of land (the other being joint tenancy). Tenancy in common lacks at least one of the features of joint tenancy, for example the parties own the land in unequal shares (see "joint tenancy"). When purchasing a property under tenants in common, you will be required to advise your Conveyancer what shares (usually expressed as a percentage or fraction) each individual will hold.
+ What is Title ?:
The right to occupy and use specified land but subject to any limitations of title set out on the certificate of title. (See also "Certificate of Title").
+ What is the Torrens System ?:
A system of registration of titles, maintained by Land and Property Information.
+ Who is the Vendor ?:
The Vendor is the Seller of the property.
+ What does Waive mean ?:
To give up a legal right. A purchaser of land may waive the right to cool off in certain circumstances (see "Cooling Off"). A person may waive the right to be able to rely on a term (including a special condition) of a contract of sale.