If you’re new to the world of property ownership, you might be wondering what role a conveyancer plays in the buying and selling process. While it may seem like a straightforward transaction, transferring property ownership is a highly complex legal and financial procedure requiring meticulous attention to detail.
This article provides an extensive examination of the conveyancing process, detailing the critical role of conveyancers, when you need one, what they do, and how they compare to solicitors. Whether you’re purchasing your first home, selling an investment property, or looking to understand the legal framework of property transfers.
What Is Conveyancing?
Conveyancing refers to the legal process of transferring property ownership from one party to another. This process involves a multitude of legal checks, financial calculations, and contractual obligations that must be met before settlement occurs.
The transfer of land or property ownership is not as simple as exchanging money and signing a contract. Instead, it involves:
- Legal due diligence to confirm the legitimacy of the sale.
- Contract negotiation to define the terms and conditions of the transfer.
- Financial adjustments to ensure outstanding rates, taxes, and levies are accounted for.
- Settlement coordination to ensure the buyer gains clear and undisputed ownership.
A conveyancer is a licensed professional specializing in property transactions who ensures this process is carried out legally and efficiently. A solicitor (lawyer) can also perform conveyancing duties, though they have a broader legal scope and may be required in more complex transactions.
When Do You Need a Conveyancer?
Both the vendor (seller) and purchaser (buyer) typically engage a conveyancer or solicitor to manage the transaction. While it is legally possible to handle conveyancing yourself, the risks and complexities involved make it inadvisable.
Here are key scenarios when a conveyancer is essential:
1. When Selling a Property
A vendor must engage a conveyancer before listing their property for sale. They will:
- Prepare the contract of sale and ensure it includes legally required disclosures.
- Conduct searches to identify easements, covenants, and restrictions that affect the title.
- Advise on tax implications, such as capital gains tax (CGT).
- Liaise with the real estate agent to ensure the contract is compliant with local laws.
2. When Buying a Property
A purchaser requires a conveyancer to:
- Review and negotiate the contract of sale to ensure fair terms.
- Conduct property searches to identify zoning restrictions, land use rights, and outstanding rates or levies.
- Ensure compliance with government schemes (such as first-home buyer grants or stamp duty concessions).
- Support mortgage brokers and ensure legal compliance with financial institutions.
3. When Refinancing a Mortgage
If you’re switching lenders, a conveyancer can:
- Handle the discharge of mortgage from the existing lender (we will normally arrange this unless there’s specific complications that requires a conveyancer).
- Register the new mortgage with the Land Titles Office.
- Ensure compliance with government schemes (such as first-home buyer grants or stamp duty concessions).
- Ensure a smooth transition between financial institutions. Again, your broker will normally handle this process and only lean on the conveyancer when required.
4. When Transferring Property Between Family Members
Property transfers due to inheritance, gifts, or divorce settlements require conveyancing to:
- Ensure the correct stamp duty exemptions or concessions are applied.
- Handle legal agreements that define ownership rights.
- Prevent future disputes by ensuring legal clarity in the transfer.
So, what does the conveyancer actually do?
What Does a Conveyancer Do?
The conveyancing process consists of several technical and legal steps, all of which a conveyancer manages on behalf of their client. Their responsibilities typically include:
1. Pre-Contractual Work
- Conducting title searches to confirm ownership legitimacy.
- Investigating encumbrances (e.g., caveats, liens, easements) that might affect the property.
- Reviewing zoning laws, strata reports, and other legal restrictions.
2. Contract Review and Negotiation
- Drafting and reviewing the Contract of Sale to protect the client’s interests.
- Advising on key clauses, including cooling-off periods, deposit conditions, and special terms.
- Negotiating any adjustments, modifications, or extensions with the other party’s conveyancer.
3. Financial Adjustments and Compliance
- Calculating pro-rata payments for council rates, strata levies, and water charges.
- Ensuring the correct stamp duty amount is applied.
- Managing the transfer of deposit funds via a legally compliant trust account.
4. Settlement Coordination
- Preparing the necessary documents for property settlement.
- Liaising with banks, solicitors, and the land registry office.
- Ensuring legal title transfer to the new owner.
5. Post-Settlement Services
- Lodging the updated Certificate of Title with the Land Titles Office.
- Registering any mortgage or caveat changes on the title.
- Ensuring all legal and financial obligations have been met.
When You Need a Solicitor Instead of a Conveyancer
While conveyancers specialize in routine property transactions, more complex cases may require a property law solicitor. Situations that may require a solicitor include the following:
- Disputes over the contract – If there are legal disagreements over the terms of the sale.
- Property inheritance or estate sales – If the property is part of a deceased estate.
- Commercial property transactions – Due to additional legal complexities.
- Bankruptcy or financial distress – If the vendor or buyer is experiencing insolvency.
- Off-the-plan purchases – These require extensive legal scrutiny due to uncertain construction timelines.
A solicitor can offer legal advice and represent clients in court if necessary, whereas a conveyancer cannot provide legal representation beyond the scope of a standard property transaction. In short, you’ll need a solicitor for court representation, complex property issues, and contract disputes. Advice from a conveyancer is limited to standard transactions.
Need Help Finding a Conveyancer?
Your broker will guide you through the process of selecting a conveyancer, and we’re happy to make some recommendations. If you’re unsure which professional suits your needs, we can connect you with an expert to help you navigate the legal aspects of buying or selling a property.
