Conveyancing

The Conveyance of Properties, whether financial or physical is of immense importance in Australia because of the fact that huge funds that constitute the savings of the people in one form or another gets invested in it. Besides, it generates significant amount of employment. Naturally, the Conveyance Law and Acts assume critical significance and a basic understanding of it in a legal and day-to-day context would benefit all alike.

The term 'Conveyance’ denotes the legal and statutory processes that are required to transfer the ownership of a real estate through the preparation, execution, verification and lodgement of various legal documents.

Conveyancing is a legally recognised act of changing the name on the "Certificate of Title' from the seller to the buyer in a real estate transaction. A Certificate of Title, under the Real Property Act, 1886 refers to the land, but not to building or any other improvements to such buildings. A legally correct ‘Conveyancing process’ is the one where the buyer and seller agree that the buyer has physically received the title to the land under reference and the seller has conveyed such title after receiving and paying all outstanding monies at the time of settlement.

Australia uses the 'Torrens Title" system which is recognised to be a simplified system for the transference of title to lands. This was introduced way back in 1958 by Robert Torrens in South Australia. The mechanics involve filing judicial proceedings in order to determine the owner of the land which was recorded on an' Original Registration certificate" that was maintained by the Torrens administrators. The uniqueness of this system is that the State takes the responsibility to guarantee the title. This is considered to be a simple, far superior and legally enforceable system.

A conveyancer is a person legally approved by the Government to advise on and in the preparation of documents for transfer (legally term: convey) real estate and it includes a property solicitor and registered conveyancer.

Examples of conveyancing could be cited at best with reference to specific nature of the transactions. It could be for residential, commercial, say relating to commercial properties, registered implying having the owners' name listed in a register that is legally certified and mortgage wherein the legal details of the property mortgaged is legally registered to ensure the title passes on to the mortgagee in the event the mortgagor defaults on the borrowed amount. They can be Real Property transactions, Simple Conveyance. These are all terms which apply to the conduct of the lawyers involved practising in the area of conveyancing and are enshrined by the Law Society Here is an example of how the Law of Conveyance is applied in reality.

The law envisages the following steps in the process of buying the property.

Making an offer:

The first step is signing of a contract for the property by way of an offer. This offer may be the sale price asked for by the seller or the one you would like to buy for leaving the scope for negotiation. The offer can either be accepted or returned by the seller with a counter offer. During this time, the agent involved may ask for a 'holding deposit' which can be up to 10% of the offer price, but, there is no hard and fast rule on this quantum. This depends on the bargaining capability of the buyer.

Engaging a Solicitor:

In order to safeguard their own interest, it is advisable on the part of both to engage different solicitors as ordinarily a real estate agent is not empowered to carry out the legal work under the Conveyance Act.

Cooling Off period:

At least in Queensland, the buyers are entitled for a five day cooling off period which basically provides the opportunity to them exit out of the contract should they want to come out of the deal. However, this entails a small cost for them to incur by way of penalty which is normally 0.25% of the purchase price.

Special Conditions:

An inspection of the building would save the buyers from considerable amount of headache at a later date. It is because Building and Pest Inspections could reveal information which was not earlier available at the hands of the buyers. The buyers safeguard themselves by incorporating a special condition in this regard.

Financing:

Financing could take considerable amount of time and hence it should be necessary for the buyers to engage them immediately after making an offer price assuming that they are opting for finance.

Settlement:

The Law envisages between four and eight weeks to complete the process of settlement from the time the contract was signed. During the interregnum the final searches in regard to the title of the project would be completed and rest of the formalities are completed.